Fox Hunting and the Right to Private Life

Friend and Countryside Alliance v United Kingdom [2009] ECHR 2068 (17 December 2009) In this case, the European Court of Human Rights unanimously held that a ban on fox hunting with dogs in the United Kingdom does not impinge upon the human rights enshrined in the European Convention on Human Rights.  The Court's analysis focused on the rights to respect for private life, freedom of peaceful assembly and peaceful enjoyment of possessions.

Facts

The first application was lodged by Captain Brian Friend, a resident of Devon, England.  The second application was lodged by the Countryside Alliance and ten other applicants.  The Countryside Alliance is a non-governmental organisation which seeks to influence legislation and public policy that has an impact on the countryside, rural people and their activities.

The Court traced the history of hunting with hounds in rural Britain from the protection of farm stock through to the ‘modern hunt’: a socially regulated activity with various customs and practices, including codes, dress, etiquette and hierarchy.   The modern hunt usually involves a pack of hounds, horseback riders and others who follow the hounds on foot.

The ban is imposed by two pieces of legislation.  In England and Wales, s 1 of the Hunting Act 2004 (the 2004 Act) provides that a person commits an offence if a person hunts a wild mammal with a dog unless the hunting is exempt.  Further, s 5 of the 2004 Act bans hare coursing, which is defined as 'a competition in which dogs are, by the use of live hares, assessed as to skill in hunting hares'.  In Scotland, s 1 of the Protection of Wild Mammals (Scotland) Act 2002 (the 2002 Act) provides that it is an offence to deliberately hunt a wild mammal with a dog.

Decision

Despite the applicants' claims that a number of Convention rights were impinged by the bans, the Court only gave detailed consideration to the rights to respect for private life, freedom of peaceful assembly and peaceful enjoyment of possessions.

The right to respect for private life

Article 8 of the Convention provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence.'  The Court did not accept that the hunting bans amount to an interference with the applicants' rights under art 8 despite acknowledging that hunting had become part of the fabric and heritage of some rural communities as well as forming a core part of the individual applicants' lives.

While recognizing that Convention rights must be broadly construed, the Court rejected the argument that the personal autonomy of the applicants, and so the right to private life, was impinged by the ban.  In particular, the Court considered that, by its nature, hunting is a public activity and there is no relevant authority which suggests that the scope of private life extends to activities which are of an essentially public nature.  Further, the Court did not accept the applicants' argument that hunting amounts to a particular lifestyle which is so inextricably linked to their identity that to ban hunting would be to jeopardise the very essence of their identity.

The second applicants also argued that the ban impinged upon their right to respect for their home because the inability to hunt on a person's land amounts to an interference with that person's home.  The Court was unpersuaded by this argument because 'the concept of home does not include land over which the owner permits or causes a sport to be conducted.'

The right to freedom of peaceful assembly

Article 11 of the Convention provides that '[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others.'  The first applicant submitted that although the bans did not prohibit the Hunt from gathering, they did emasculate the right by prohibiting the raison d'être of the gatherings.  The Court recognised that although the original purpose of art 11 was to guarantee peaceful demonstration and participation in the democratic process, its present scope is much broader.  However, the Court was not prepared to read the right so as to protect the hunt because the ban only prohibits gathering for the purpose of killing a wild mammal with hounds, not gathering per se.

The right to peaceful enjoyment of possessions

Article 1 of Protocol No 1 of the Convention provides that:

[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions....  The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…

The Court deemed that it was unnecessary to establish the full extent of this right because even if the ban did interfere with the property rights of the applicants, the Court considered that it served a legitimate aim and was proportionate for the purpose of art 1.  Further, the Court identified authority which stated that the Court will respect the legislature's judgment as to what is 'in the public interest' unless that judgment is manifestly without reasonable foundation.  The 'extensive public debate' and 'extensive debate in Parliament' about the content of the bans meant that the Court decided that the two legislatures were entitled to create the 2004 and 2002 Acts.

Relevance to the Victorian Charter

This decision provides useful guidance for the interpretation of ss 13 (right to privacy) and 16 (right to peaceful assembly and freedom of association) of the Victorian Charter.  Although the applications were ultimately dismissed as inadmissible because they were manifestly ill-founded, the Court provided some useful analysis in relation to these two rights.  The utility of the general principles discussed is not diminished by the difference in the wording of the rights in the Victorian Charter and the Convention.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/2068.html.

Michael Gomm is a lawyer with Allens Arthur Robinson