Friend v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 27 September 2005 |
| Neutral Citation | [2005] CSIH 69 |
| Date | 27 September 2005 |
| Docket Number | No 6 |
| Court | Court of Session (Inner House) |
Court of Session Outer House Extra Division
Lord MacLean, Lady Paton, Lady Smith
Constitutional law - Scottish Parliament - Legislative competence - Whether Act of Scottish Parliament outwith legislative competence - Whether Act required to be in conformity with international obligations of the United Kingdom - Whether Act incompatible with the European Convention on Human Rights and Fundamental Freedoms - Whether relevant averments that Act interfered with private life, freedom of thought or conscience, freedom of expression, freedom of assembly and association, the prohibition of discrimination, the prohibition of abuse of rights or the safeguard for existing human rights contrary to Arts 8, 9, 10, 11, 14, 17 or 53 - Scotland Act 1998 (cap 46), secs 28, 29, 30, 35, 57, 58, 100, 101, sch 7 - Human Rights Act 1998 (cap 42), secs 1, 4 - Protection of Wild Mammals (Scotland) Act 2002 (asp 6), sec 1
The Protection of Wild Mammals (Scotland) Act 2002 provides that mounted fox hunting in which the fox is pursued by hounds with the intention that the hounds kill the fox is a criminal offence.
The appellant and another brought a petition maintaining that the offences established under the act were incompatible with their freedoms under the European Convention on Human Rights and did not comply with existing international treaty obligations of the United Kingdom. Following debate, the Lord Ordinary dismissed the petition on the grounds that the petitioners' averments were irrelevant and lacking in specification. The appellant then appealed to the Inner House on the same grounds as had been advanced before the Lord Ordinary abandoning only the argument under Art 53 of the European Convention on Human Rights.
The appellant argued that the offences were: incompatible and had no legal competence and were unlawful under the Convention; incompatible with UK international obligations; did not pursue a legitimate purpose; were not necessary in a democratic society and were discriminatory.
Held that: (1) the appellant's averments did not engage his Convention rights (paras 10, 15, 19, 22, 24, 25); (2) in the absence of incorporation into Scots law, international treaty obligations formed no part of the law of Scotland (para. 26); and appeal refused.
Jeremy Hagan Whaley and Brian Leonard Friend presented a petition under the judicial review procedure in the Court of Session seeking declarator that sec 1 of the Protection of Wild Mammals (Scotland) Act 2002, an Act of the Scottish Parliament, was incompatible with the European Convention on Human Rights and conflicted with certain international obligations of the United Kingdom. The Lord Advocate was called as respondent. Following a first hearing on the petition and answers the Lord Ordinary (Brodie) dismissed the petition.
The matter came before an Extra Division of the Court of Session, comprising Lord MacLean, Lady Paton and Lady Smith, on the second petitioner's reclaiming motion.
Cases referred to:
Adams v Scottish MinistersSC 2004 SC 665
Chapman v UKHRC (2001) 33 EHRR 18
Chassagnou v FranceHRC (1999) 29 EHRR 615
G and E v NorwayENR App Nos 9278/81 and 9415/81, unreported
Johnston v IrelandHRC (1986) 9 EHRR 203
Kjeldsen, Busk Madsen and Pedersen v DenmarkHRC (1976) 1 EHRR 711
Konkama and 38 other Saami Villages v Sweden App No 27033/95, unreported
Mandla v Dowell LeeELRWLRUNK [1983] 2 AC 548; [1983] 2 WLR 620; [1983] 1 All ER 1062
Mortensen v Peters (1906) 8 F (J) 93; (1906) 14 SLT 227
Niemietz v GermanyHRC (1992) 16 EHRR 97
Noack v Germany 25 May 2000, unreported
PG and JH v UKUNK [2002] Crim LR 308
Pretty v UKFLRUNKHRC [2002] 2 FLR 45; [2002] 2 FCR 97; (2002) 35 EHRR 1
R v Attorney-General, ex p Countryside Alliance [2005] EWHC 1677; (2005) 102 (36) LSG 29
R v LyonsUNKELRWLRUNK [2002] UKHL 44; [2003] 1 AC 976; [2002] 3 WLR 1562; [2002] 4 All ER 1028
R v Secretary of State for Education and Employment, ex p Williamson and orsUNKELRWLRUNK [2002] EWCA Civ 1926; [2003] QB 1300; [2003] 3 WLR 482; [2003] 1 All ER 385
R v Secretary of State for the Home Department, ex p BrindELRWLRUNK [1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720
Wandsworth London Borough Council v MichalakUNKWLRUNK [2002] EWCA Civ 271; [2003] 1 WLR 617; [2002] 4 All ER 1136
At advising, on 27 September 2005, the opinion of the Court was delivered by Lord MacLean-
Opinion of the Court- [1] The appellant, Brian Leonard Friend together with Jeremy Hagan Whaley, raised a petition seeking judicial review of the enactment by the Scottish Parliament of the Protection of Wild Mammals (Scotland) Act 2002 (asp 6) on the ground that the offences established under the Act were incompatible with the petitioners' rights and freedoms under the European Convention on Human Rights and Fundamental Freedoms and, in particular, Arts 8, 9, 10, 11, 14, 17 and 53. (The 2002 Act will be referred to as 'the Act' and the ECHR as 'the Convention'.) The petitioners also averred that the offences conflicted and did not comply with a number of existing UK international obligations which they enumerated in art 4 of the petition. They challenged the legislation in terms of the Human Rights Act 1998 (cap 42) and the Scotland Act 1998 (cap 46) on the grounds that the offences (i) were incompatible and had no legal competence and were unlawful under the Convention; (ii) were incompatible with UK international obligations; (iii) did not pursue a legitimate purpose; (iv) were not necessary in a democratic society; and (v) were discriminatory. They maintained that the inevitable consequence of the offences was that wild mammals and other creatures would be killed by methods that invariably inflicted more pain and suffering than hunting them with hounds. Both petitioners were involved with the Berwickshire Hunt, Mr Whaley as master and huntsman and the appellant as a follower, either mounted or on foot. They averred that hunting with hounds was an historical and cultural activity and constituted a cultural life that was followed by an ethnic group. This group of people had thus a common cultural or national tradition...
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