Tag: Proportionality

Event Coverage: Whatever Happened to the European Arrest Warrant?

Niall Coghlan

 

Introduction

Under the Anti-Social Behaviour, Crime and Policing (ABCP) Bill, substantial reform of the European Arrest Warrant (EAW)’s implementation in the UK is promised.[1] Simultaneously, the European Parliament is pressuring for EAW reform at the European level.[2] To analyse these reforms, a seminar chaired by John Spencer (University of Cambridge), with Anand Doobay (Peter and Peters), Libby McVeigh (Fair Trials International) and Helen Malcolm QC (3 Raymond Buildings) on the panel, took place in London on 9 December 2013.[3]

The Framework Decision on the EAW (FDEAW) attempts to simplify and streamline extradition proceedings between Member States (MS) through the principle of mutual recognition.[4] This means that an EAW must be executed within strict time limits, subject only to limited exceptions; most notably, states cannot refuse to extradite their nationals, and for 32 core offences, there is no requirement of dual criminality.[5]

Although a success on its own terms, with average extradition time falling from nine months to 43 days, the FDEAW’s mutual trust is premised on states having faith in their neighbours’ justice systems.[6]   This faith is not always justified, and judicial dialogue has become increasingly strained over two problems: first, fair trial standards in issuing states[7]; second, EAWs issued for trivial or old crimes.[8] How, though, can rights be protected without undermining the EAW’s efficiency gains and integrative aims?

The seminar began by analysing Theresa May’s reforms, contained in the ABCP and the recent Crime and Courts Act, which purport to answer this question.[9]

The Forum bar

This is the first headline reform. Under the forum principle, a state may refuse to extradite where it considers itself to be the most appropriate forum for a trial. In response to the (American) McKinnon case, the Crime and Courts Act 2013 introduced a forum bar for all extraditions, including EAW ones.[10] This does not breach the FDEAW.[11]

‘Much ado about nothing’, however, is how Spencercharacterised it. Its background arouses suspicion. In introducing this reform, the government ignored the simple forum bar enacted (but never brought into force) by Labour in 2006.[12] It further ignored the conclusions of the Scott Baker report, which it commissioned: this concluded that a forum bar would constitute a ‘backward step’, both slower and more litigious than the current prosecutorial negotiations that decide forum; nor would it have helped McKinnon.[13]

This suspicion is confirmed by the provision, which is as complex as it is weak. Both the EU and continental courts are frequently lampooned as slaves to inflexible codes of labyrinth complexity. Yet, Spencer continued, the EAW’s forum bar provision is 57 words long; the French, a mere 32; the UK’s, by contrast, contains a monstrous 1,496 words.[14] The reason for this length is its highly prescriptive and restrictive nature: it has a narrow, exhaustive list of ‘interests of justice’, requires a ‘substantial part’ of the crime to have occurred in the UK, and can be removed from the Court’s hands altogether by a non-judicially reviewable CPS certificate. It is the UK, then, whose judiciary is constrained by a code which is much weaker than it appears, where the French enjoy simplicity and significant judicial discretion.

Whilst this criticism is mostly persuasive, Doobay added one interesting caveat. The perpetual problem with a forum bar was that whilst the extraditing court may rule that the UK is the most appropriate forum, it cannot order a prosecution. If none resulted, the accused would gain de facto immunity. The CPS certificate, then, could be used to ensure extradition is not forum-barred where no UK prosecution is likely.[15]

The Proportionality bar

The EAW is not intended for trivial offences; consequently, the offence must be punishable by at least 12 months’ custody (four months for a conviction warrant).[16] Doobaypointed out, however, that this threshold can prove ineffective: theft of a pencil is theft, and so exceeds the threshold, even though extradition would be manifestly disproportionate. Similarly, whilst the Commission hopes that discretion by the issuing state can solve the problem, the reality is that prosecutors are highly uneven in their use of this discretion.[17] Executing states are growing restless at their inability to refuse plainly disproportionate warrants.[18]

Moreover, as a matter of principle some proportionality review must occur in the executing state. The public interest in extradition must be balanced against the accused’s human rights, particularly under ECHR[19] Article 8. In HH, Malcolm noted, the Supreme Court had set out how this balance should be struck.[20] Yet, Doobayargued, only the executing court can judge this: the issuing court has no knowledge of the accused’s situation. Even where the issuing state has acted properly, then, an executing proportionality bar should exist.

The UK already has a limited form of proportionality review: where the ‘passage of time’ makes extradition unjust or oppressive, it is barred.[21] May’s second headline reform would add an explicit, general proportionality bar for all accusation warrants.[22]

Whilst all agreed that a proportionality bar was necessary, the panel criticised the proposed bar. First, it is highly restrictive: only the offence’s ‘seriousness’, its ‘likely penalty’, and the availability of ‘less coercive measures’ may be considered.[23] Malcolm noted that human rights must be implied as a further consideration, else there would be nothing to weigh these factors against. For McVeigh, the list should be expanded to include the expense and human impact of an extradition. Second, it does not apply to extradition for an existing conviction: this is both unprincipled and ignores the injustice of cases like Natalia Gorczowska, a mother-of-one sought over an old suspended sentence for a minor drug offence.[24]

At the other end, it was criticised from the EAW’s perspective. First, Malcolm argued that it breached the FDEAW, except to the extent that it followed the balance struck in HH. It plainly contradicted mutual trust, with opt-in consequences that are outlined below. Second, both Doobay and Malcolm asked how proportionality could be judged without undertaking precisely the arduous analysis that the EAW aims to avoid. For instance, a crime might be more serious in a particular state, or for a particular victim. Estimating the likely sentence would presumably require expert evidence. Worst of all, only in relatively minor cases could extradition possibly be disproportionate; consequently, the new bar will make these most minor cases the most expensive, litigated and lengthy ones.

The unreformed: fundamental rights

Whilst seeking to introduce a proportionality bar, the government is not legislating on an equally controversial issue: fundamental rights in issuing states. Under the ECHR, evidence of a ‘flagrant denial of justice’ in the accused’s trial is required to show this.[25] Yet, McVeighargued, this faith in Member States’ conditions was as much a myth as mutual trust: between 2007-2012, a breach of ECHR Articles 5 or 6 was found in over 500 criminal cases by the ECtHR. Again, a tension exists between mutual trust and defendants’ rights.

Overall, the UK’s reforms in these three key areas did not impress the panel. May’s more modest reforms, which follow, were more warmly received.

Other reforms: trial readiness, leave to appeal, and specialty

First, ‘trial readiness’: under UK law, a prosecution EAW must be issued for ‘the purpose of’ prosecution’.[26] This is potentially extremely wide. The Symeou case showed the dangers of this approach, said McVeigh. Symeou spent two years confined to Greece (eleven months in jail) having been extradited from Britain, before being acquitted at trial. The proposed reforms, which Doobay noted was borrowed from Irish law, allow extradition only where a decision to charge or try had been made.[27] Unlike the Irish Act, it has an exception where the accused’s absence is the sole reason they have not been charged: this author adds that this closes a loophole that would otherwise open via the Assange case.[28]

Presently, an EAW extradition order may be appealed to the High Court by right. This is subject to a strict seven-day time limit. Under the proposed reforms, leave to appeal would become required; balancing this, appeals out of time would be possible where the accused had done ‘everything reasonably possible’ to appeal in time.[29] This relaxation was necessary, said Doobay; indeed, it codified the Supreme Court’s ruling in Lukaszewski that Article 6§1 ECHR required out-of-time appeals in exceptional circumstances, whilst removing that judgment’s potentially-discriminatory suggestion that this applied only to British citizens.[30] For McVeigh, the new leave requirement was very disappointing, and the relaxation, whilst welcome, did not go far enough: the Scott-Baker report’s more flexible test should be adopted.[31]

Under the specialty doctrine, an extradited person may only be tried for the offence for which he was extradited, subject to limited exceptions. Doobay noted that under the current law, consenting to extradition constitutes a waiver of specialty.[32] This discourages accused persons from consenting where they otherwise would, causing costly delay. May’s reforms would remove this rule.[33] This author notes that this abolition is likely to breach the FDEAW, although the relevant articles are unclearly drafted.[34]

Opt-outs

Whilst the panel found parts to praise in these reforms, then, the prevailing image was negative: the forum bar was broadly bluster, the absence of a stronger fundamental rights bar was disappointing, and the proportionality bar potentially breached the FDEAW.

Malcolm argued that this last point was particularly problematic: not only might infringement proceedings against the UK be brought once the CJEU gains jurisdiction in December 2014, but more urgently the Commission might reject Britain’s application to opt back in to the EAW after exercising its mass opt-out of pre-Lisbon criminal measures in 2014.[35]

Upon leaving the EAW, the UK’s extradition framework would be entirely unclear, Malcolm continued. It might revert to the pre-EAW system, as one Parliamentary committee expected; or it might need to move straight to a successor system, as another did.[36] Spencer agreed with the latter; renegotiation with all 27 Member States would likely be necessary, and in the chaos, the UK would become a ‘new Costa Del Crime with poor weather’.

EU-level reform

Moving away from the UK’s unilateral reforms, there are two sides to the European answer to the EAW’s deficiencies. The first, McVeigh said, was harmonisation. In addition to 2013’s directive on the right of access to a lawyer, three directives on suspects’ rights were recently proposed.[37] By raising guaranteeing minimum procedural rights across Europe, these may provide one answer to the question of human rights.

The second is, like the UK’s reforms, a loosening of mutual trust. The European Parliament primarily justifies this as a question of implementation, Doobay said.[38] The UK is not the only state to deviate from the FDEAW because of proportionality and human rights concerns. Come December 2014, when the Commission can bring FDEAW-related enforcement proceedings, these contradictions will come to a head.[39] By relaxing the FDEAW’s strictures before then, these clashes might be avoided. McVeigh noted that this move away from mutual trust could be seen in the agreed text of the European Investigation Order, which includes a standalone provision on fundamental rights.[40]

For two reasons, this loosening of mutual trust might not undermine the EAW, as the Commission feared. First, asDoobay noted, some proportionality bar must exist.[41] Mutual trust, therefore, simply must yield; the only question is how far. Second, McVeigh argued that by refusing to execute a warrant for failure to reach basic fair trial standards, the executing state encourages the issuing state to reach those standards. A rights review could, then, complement mutual trust: it constituted an investment in, not a rejection of, integration.

Conclusion

In his final remarks, Spencer returned to the question of harmonisation. Britain should recognise that the EAW has revealed rather than caused these European problems. As the Confait case showed, the UK was not born free of original sin in pre-trial procedure, but has successfully improved over the years. Far from opting out of the EAW system, she ought to leadEurope in reaching the same standard.[42]

[1] Anti-social Behaviour, Crime and Policing Bill (ABCP) (HL Bill 66, 2013-14): 12/12/2013 edition, as amended in Committee, Part 12. (‘ABCP’); on promises, see HC Deb, 10 June 2013, c74-5.

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-522.805+02+DOC+PDF+V0//EN&language=EN

[3] http://www.events.sas.ac.uk/events/view/14705

[4] 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States; Ibid., Recitals 5 and 6; See generally S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), pp693-710.

[5] FDEAW, Articles 1(2), 2, 3 and 4; see Peers, EU Justice (n 4), 703 for further restrictions.

[6] FDEAW, Recital 10; Peers, EU Justice (n 4), 705f, 708 and 752-753.

[7] C-396/11 Radu; C-399/11 Melloni; http://ukconstitutionallaw.org/2013/05/22/dorota-leczykiewicz-melloni-and-the-future-of-constitutional-conflict-in-the-eu/

[8] Minister for Justice and Equality v Ostrowski [2013] IESC 24 (Ire), espJudgment of MacMenamin J. See generally Peers, EU Justice (n 4), 705-9.

[9] ABCP (n 1); Crime and Courts Act 2013,.

[10] Crime and Courts Act 2013, s50.

[11] FWD Art 4, Art 4(7)(a)

[12] Police and Justice Act 2006, Sch 13.

[13] 6.28-6.30, 6.68 on prosecution (but cf 6.43), and 6.77-80 conclusions; in a striking parallel, s43 of the same Act alters self-defence law in a way that would not have affected the Martin and Hussain cases underlying calls for reform.

[14] FWD Art 4, Art 4(7)(a); Code de procédure pénale Art 695-24 alinéa 3o, 4o; Crime and Courts Act, Sch 20; NB the 2006 bar was just 138 words.

[15] Mr Doobay’s interpretation is reinforced by the specified considerations under s19D.

[16] FDEAW, Article 2(1).

[18] See Minister for Justice and Equality (cited above, n 8).

[19] European Convention on Human Rights

[20] [2012] UKSC 25, esp paras 27-34, 44-48 and 79, cited by Helen Malcolm QC.

[21] Extradition Act (EA) 2003, s11(1)(c), s14; EA 2003, s11(1)(b), s13;

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0430:FIN:EN:PDF, p182.

[22] ABCP, Clause 145.

[23] ABCP, Clause 145, inserting s21A(3).

[25] ECtHR, Othman v UK (2012) 55 EHRR 1, §§259-261; Janovich v Prosecutor General’s Office Lithuania [2011] EWHC 710 (Admin); cf AG Sharpston’s rejection of this standard in C-396/11 Radu, at 82-5.

[26] FWD A1(1); Extradition Act 2003, s2(3).

[27] ABCP, Clause 144; s11(3) European Arrest Warrant Act 2003 (Ire).

[28] Julian Assange v Swedish Prosecution Authority, [2011] EWHC 2849 (Admin), paras 148-154.

[29] ABCP, Clause 148

[30] [2011] UKSC 177, paras 32-40; see criticism of this approach in the (concurring) judgment of Hale LJ, paras 51-54

[31] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117673/extradition-review.pdf 11.75-11.84: presumably, in particular, the 14-day limit, the lack of a court fee requirement, and the extension where the appellant has provided inadequate grounds.

[32] EA 2003, s45(3) for EAW; s128(5) for non-EAW.

[33] ABCP, Clause 151

[34] FDEAW, A13 and A27(3)(e); see S Peers, EU Justice and Home Affairs Law  3rd edn (Oxford, OUP, 2011), p704.

[35] https://www.gov.uk/government/publications/the-2014-decision

[39] Protocol 36 of the Lisbon Treaty, Article 10.

[41] Above, ‘Proportionality bar’.

[42] R v Lattimore, Salih and Leighton (1975) 62 Cr App R 53; Report of an Inquiry by the Hon. Sir Henry Fisher into the circumstances leading to the trial of three persons on charges rising out of the death of Maxwell Confait and the fire at 27 Doggett Road, London SE 6 (H.C.P. 90 of 1977-78).

Case Comment: C-523/11 and C-585/11 Prinz and Seeberger – AG Sharpston strikes again

 

Re-posted from the Eutopia Law Blog

 

Adrienne Yong

PhD Candidate at King’s College London

 

Yet another chapter of the European citizenship saga sought clarification by AG Sharpston in the Prinz and Seeberger Opinion delivered last week on February 21, 2013. Concerning one of the most prevalent categories of citizens claiming rights under the Art 20 and 21 TFEU – students – Prinz and Seeberger discusses a classic situation that has pervaded the over 20 years of Union citizenship development. Effectively, AG Sharpston aims to explicate the notion of proportionality in citizenship, which has for years escaped valid clarification. She discusses the different strands of objectives of integration, with more substantial meaning than it would appear at first.

 

Facts

In Prinz, a German moved from Germany to Tunisia with her family for her father’s job, then returned years later for secondary school, subsequently deciding to attend university in Holland. She was granted funding from German authorities for her first year, but was rejected for the second as she failed to satisfy the ‘three-year rule’ residency requirement, which stated that a citizen had to be resident in Germany for three years prior to the start of their course.

In Seeberger, a German who attended school in Germany, then moved to Spain with his family for his father’s work in the middle of secondary school, completed his secondary education in Spain and after some time qualifying to university in Spain, sought a grant to fund his studies in Spain from the German authorities. This was denied again on the ‘three-year rule’.

Both argued that Art 20 and 21 TFEU were contravened for impeding free movement, and the Court of Justice of the European Union (CJEU) was asked to clarify whether this ‘three-year rule’ was contrary to EU law.

 

AG Opinion

In her Opinion, AG Sharpston sought to explicate her perspectives on the meaning and justification behind integration and proportionality, particularly referring to the justification behind residency requirements often being the protection of national resources. It is questioned by AG Sharpston whether the consistent invocation of the unreasonable burden reasoning requires reconsideration. Beginning by eliminating the provisions inapplicable in order to conclusively consider the effect of suitable criteria, she then delivers her insightful comments regarding justifications, proportionality and interpretation of the ‘three-year rule’.

Evidently, the three-year rule is a restriction. Germany thus submits two justification objectives, one under the economic rationale, the other socially related. She separates the two and considers the legitimacy and appropriateness of both restrictions in a detailed analysis of each objective’s interpretation.

It is evident that AG Sharpston is unconvinced that Member States should simply lay out economic objectives based on avoiding unreasonable burdens on the financial resources of Member States. This was discussed in Bidar and Morgan and Bucher. She believes it is apt for the CJEU to perhaps guide Member States as to what may constitute reasonable or unreasonable burdens, as this highly variable concept is subject to an element of potential exploitation on the part of the protectionist Member States. Suggested is a thorough analysis of whether the burden truly risks interfering with the balance of Member State resources to avoid invoking protectionism behind a veil of valid justification. She then continues to distinguish an economic objective from an integration objective, which brings into play the political elements of a proportionality assessment.

The interplay between integration and economics as objectives of justifications becomes a sticky situation, but ultimately AG Sharpston aims to clarify whether it suffices to consider integration an objective on its own. There is an inconsistency if integration objectives are cited to justify rendering an economic objective proportionate. This is because choosing to require a degree of integration simply to meet budgetary concerns actually ignores the notion of being integrated.

She goes onto state the ‘three-year rule’ is far too restrictive given it requires uninterrupted periods of residence immediately prior to education, and whilst there is no direct mention of nationality, the inherent connection a national has renders it a difficult factor to ignore when considering proportionality. This is particularly relevant here, as both claimants are German. She opines there are certainly less restrictive measures possible, though interestingly does not suggest any outwardly. Though the ‘three-year rule’ is transparent, efficient and legally certain – the rationales behind Germany’s choice of restriction – this does not translate to it being necessarily proportionate.

Under the social objective put forward by the Germans, solidarity is a feature. Ultimately, AG Sharpston considers that the ‘three-year rule’ has little to achieve by means of social objectives given that the link between requiring citizens to reside three years prior to education and them remaining after their studies is tenuous at best. Again legal certainty, transparency and efficiency did not outweigh proportionality.

AG Sharpston answers the CJEU’s question in the positive: Art 20 and 21 TFEU would preclude the ‘three-year rule’ from preventing the claimants from being granted the funding needed for education outside their own home States. Whilst a simple question in effect, AG Sharpston has managed to delve deeper into the meaning and notion of proportionality in terms of what Member States use as justifications, deconstructing their generic excuses of integrationist and economic objectives to uncover what their argument really insinuates and striking them down by use of the famous tool, proportionality.

UKAEL Annual Lecture 2012 – Proportionality: the way ahead?

Adrienne Yong

LL.B (Hons), Dunelm; LL.M (Hons), Lond.


PhD Candidate, the Dickson Poon School of Law, King’s College London

 

Under our humble repertoire at King’s College London we boast the high profile UK Association of European Law (UKAEL). This year we were honoured to have Rt. Hon Lady Justice Arden join us on Monday, November 12 to speak about a highly relevant and wide-reaching European topic: proportionality. As one of the most controversial and powerful principles covering all aspects of EU law, Lady Arden described it as ‘impeccable and irresistible’. She would focus on three areas in which proportionality played the most interesting roles. These are its role in the European Court of Human Rights (ECtHR), its role in Court of Justice of the European Union (CJEU) and its role in the domestic courts of the UK. Cases cited provided plentiful food for thought as it has come to light that the EU is being moulded more and more differently by the coming into force of the Lisbon Treaty in 2009.

Before beginning, it was pertinent to define proportionality. Those familiar with the principle can understand how difficult this could be, hence the use of ‘badges’ of proportionality rather than concrete statements of its definition. It would turn to be uncovered what these ‘badges’ are in the three differing areas, how they are applied and how they should be interpreted.

Proportionality derives from 19th century administrative law in Prussia, mainly from the notion of necessity. It was adopted by many, having realised its potential to be a simple yet complex and flexible principle. Lady Arden stated that it was relevant and useful because it could test constitutionality of interference with human rights. Proportionality then branched out to become understood in terms of suitability alongside necessity and with considerations of striking a fair balance also in play. These understandings of proportionality are still used today.

European Court of Human Rights

Proportionality in the ECtHR in Strasbourg is evident because of the emphasis in the case law on striking a fair balance. This is even evident in the qualified limbs of certain of the Convention Articles, namely Article 8 on the right to private and family life, which Lady Arden quoted the second indent of:

“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.”[i]

It appeared the drafters of the Convention also envisaged a flexible out from the (at times) very strict rules laid out under the Convention. Indeed, it is well known that even the rights under the Convention are tenuous, as not all harmoniously interpret the way rights should be protected. Therefore, qualified rights such as Article 8 ECHR allow for the interests of individuals (protected in the first branch of the Articles themselves) to be balanced against the collective interests of others.

The case study chosen by Lady Arden is one of the seminal cases on blasphemy: Otto Preminger v. Austria[ii] concerning the ban on a religiously offensive film by the Austrian government. The interests in question were freedom of expression under Article 10 ECHR and freedom of religion in Article 9 ECHR. Though decided in a fairly neutral manner by reference to proportionality (leaving it up to the national court), Lady Arden’s analysis centred around dissents of the minority (those opposed to the decision of the majority). The majority of judges agreed that the ban could stand without actually being against religious debate under Article 9 ECHR. The minority disagreed with Austria prosecuting the film-makers but did note that a ban should only be proportionate if there were serious and violent attacks on religious groups. This fine distinction proves a very important one in the fair balance to be struck between freedom of expression and freedom of religion as to their proportionate intensity. The minority agreed that less restrictive measures as an alternative to a complete ban should be possible if engaging in a qualitative assessment of each right to whatever facts at hand.

In Lady Arden’s opinion, there are two steps to take in circumstances of a clash of rights. First, a qualitative assessment of the rights must be carried out and following this, an examination of how to reconcile the rights. It is not theoretical, but practical. They should apply specific facts of the case. In Axel Springer[iii] there is some guidance as to how to distribute certain rights, which Lady Arden suggested was of use. However, as ever, there is no agreement of a solution to such a sensitive problem.

Court of Justice of the European Union (CJEU)

The relationship of the Court of Justice with proportionality defined in ECHR terms is such that it was borrowed as a legitimate way to depart from Fundamental Rights or more significantly, the EU Internal Market’s fundamental freedoms. The Luxembourg court defines proportionality slightly differently, with its ‘badges’ as suitability, necessity and the least restrictive means. However, proportionality in the EU has been criticised by Lady Arden as lacking a maximum level of intensity. Indeed, the threshold for its applicability has often been that there must be a ‘manifest’ breach and she believes this is not appropriate to achieve certain aims.

The rationale behind this reasoning has been suggested as due to the judicial restraint that Luxembourg has to exercise in relation to its supranational nature as an EU institution in relation to the various national courts. There is a tendency for the CJEU to defer to the national court’s assessment of proportionate measures, such as in Omega[iv] where the German assessment of an affront to human dignity was held to be acceptable because it was felt Germans knew what was best for their citizens. Indeed, this is logical but again fails to fulfil the notion that proportionality should strive to be flexible and wide-reaching in order to protect vulnerable citizens.

Lady Arden describes proportionality in the CJEU as having many points along a spectrum. There is often a higher intensity of review in MS courts compared to the EU institutions. Additionally, there is confusion as to necessity and suitability being interchangeably used in the EU. Factors also vary greatly, such as in scientific evidential cases where the precautionary principle allows potential risk reducing measures to be proportionate. Yet again her discussion on the point summates in a lack of clear answer to addressing faults.

UK Judiciary

In the British court system, the varied influences of the definition of proportionality have created a multilevel manifestation of judging. Three recent cases cited were as follows.

In F (A Child)[v] there was a question reviewing sex offenders’ requirements for notification (to the police as to almost every move of their private lives) as being against Article 8 ECHR. Proportionality was the main driving factor in this, and the UK Supreme Court held that the legitimate aim behind such a measure was in accord with the precautionary principle for the risk of the threat that sex offenders posed. They thus rejected it appealing to the right to private life, fairly strongly asserting the definition of proportionality in the eyes of the British courts.

In Aguilar Quila,[vi] a proposal was put forward to raise the legal age of marriage in order to obtain a spouse’s visa to 21. The policy behind this was to deter forced marriages, with compassionate discretionary exceptions. It was highly controversial as one argument strongly against it was that it significantly hampered the right to unforced marriages, and under this notion the Supreme Court rejected it as a proportionate measures in regards to the four ‘badges’ of proportionality. The dissent from Lord Brown was, however, that the Supreme Court did not have perfect material to fully consider proportionality having ignored the Secretary of State’s opinion.

Finally, in the Court of Appeal judgment in Sinclair Collis[vii] on a tobacco vending machine ban and an interference with the freedom to free movement of goods, the outright ban was found proportionate in order to reduce smoking. Lady Arden, who was involved in the case, argued that ‘manifestly inappropriate’ was the level to consider the ban against because it involved EU law. Indeed, this would be a consistent interpretation with EU law, but interestingly does fully exemplify the multilevel nature of proportionality especially where sources are so varied.

Law and Politics

What Lady Arden meant to clarify was that it appeared that proportionality brings judges closer to the fine line between law and politics. This is especially so in Britain, as the her three case studies demonstrated the divergent approaches to the seemingly simply principle of proportionality. The courts must be mindful of the interaction between themselves and the decision makers, as there are often value judgments to be made. It would appear from the disparate interpretations of proportionality at the UK level that this has placed the common law at a disadvantage in relation to the separation of powers of the judiciary and the executive. It also suffers from evidential issues. Ultimately, it comes down to the question – who knew one word could cause so much controversy? This controversy will last for many years to come.

[i] Convention for the Protection of  Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 8(2)

[ii] Otto-Preminger v. Austria (1995) 19 EHRR 34

[iii] Axel Springer v. Germany (2012) 55 EHRR 6

[iv] Case C-36/02 Omega [2004] ECR I-9609

[v] R. (on the application of F) v Secretary of State for Justice [2010] UKSC 17

[vi] Aguilar Quila v Secretary of State for the Home Department [2011] UKSC 45

[vii] Sinclair Collis Ltd v Secretary of State for Health [2011] 3 C.M.L.R. 37