R (Countryside Alliance and Others) v Attorney General and another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Master of the Rolls,the Master of the Rolls
Judgment Date23 June 2006
Neutral Citation[2006] EWCA Civ 1096,[2006] EWCA Civ 817
Date23 June 2006
Docket NumberC1/2005/2071, C1/2005/2072, C1/2005/2071(B) , C1/2005/2072(A) , C1/2005/2083,Case No: C1/2005/2071 (Y)

[2006] EWCA Civ 1096

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION ADMIINISTRATIVE COURT

(LORD JUSTICE MAY, MR JUSTICE MOSES)

Royal Courts of Justice

Strand

London, WC2

Before:

The Master of The Rolls

Lord Justice Brooke,

Vice President, Court of Appeal (Civil Division) and

Lord Justice Buxton

C1/2005/2071, C1/2005/2072, C1/2005/2071(B) ,

C1/2005/2071(C) , C1/2005/2071(Y) ,

C1/2005/2072(A) , C1/2005/2083

The Queen on The Application of
The Countryside Alliance & Ors
Claimants/Appellants
and
Hm Attorney General & Anr
Defendants/Respondent

The parties were excused attendance when the judgment ([2006] EWCA Civ 817) was handed down by Lord Justice Brooke on 23 rd June.

STATEMENT ON HANDING DOWN JUDGMENT

1

LORD JUSTICE BROOKE: These are two appeals and one application for permission to appeal that I heard with the Master of the Rolls and Buxton LJ in March.

2

For the reasons set out in the judgment of the court, copies of which have been made available to the parties, the appeals of the Human Rights appellants and of the European Community appellants are dismissed. The Human Rights appellants and the European Community appellants will each pay the respondents the costs of and occasioned by their respective appeals, such costs to be assessed on the standard basis if not agreed.

3

The application of Mr Friend and Mr Thomas for permission to appeal is refused.

4

So far as the applications by the Human Rights appellants and the European Community appellants for permission to appeal to the House of Lords are concerned, we have received written submissions from the parties which we have had the opportunity to consider. We refuse permission to appeal to the House of Lords for both groups of appellants. So far as the Human Rights appellants are concerned, we have a very clear view that it must be a matter for the House itself to decide whether it is willing to entertain their appeal. So far as the European Community appellants are concerned, we have decided against them on the issue of justification, in which we consider that the law is clear and the issue is one for the judgment and assessment of the national court.

5

It may be of assistance to the press if I point out that, although we have not published a separate summary, the judgment contains at paragraphs 180 to 193 a summary of what we have decided in the full text of the judgment.

Order:

C1/2005 /2071 – Appeal dismissed.

C1/2005 /2072 – Appeal dismissed.

C1/2005 /2071(B) – Applications for permission to rely on further evidence granted.

C1/2005 /2071(C) – Applications for permission to rely on further evidence granted.

C1/2005 /2071(Y) – Applications for permission for renewal of part refusal of permission to appeal allowed.

C1/2005 /2071(A) – Applications for permission to rely on further evidence granted.

C1/2005 /2083 – Application for permission to appeal with appeal to follow if permission is granted – permission refused.

[2006] EWCA Civ 817

[2005] EWHC 1677

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

The Master of The Rolls

Lord Justice Brooke and

Lord Justice Buxton

Case No: C1/2005/2071 (Y)

C1/2005/2072

Between:
The Queen (On The Application Of)
The Countryside Alliance & Others
and
(1) H.m. Attorney General
(2) The Secretary of State for Environment, Food and Rural Affairs
Respondent
Between:
The Queen (On The Application Of)
Frances Derwin & Others
and
(1) H.m. Attorney General
(2) The Secretary of State for Environment, Food and Rural Affairs
Rspca (Intervener)
Respondent

Richard Gordon QC (instructed by Allen & Overy LLP) for the 1st

David Anderson QC and Marie Demetriou(instructed byClifford Chance) for the 2nd Brian Friend and Hugh Thomas (in Person)

Philip Sales; Jason Coppel (instructed by The Treasury Solicitor and DEFRA) for the Respondents

Rabinder Singh QC and Kate Cook (instructed by RSPCA Legal Department) for the Intervener

The Master of the Rolls

This is the judgment of the court, dismissing both appeals and refusing permission to appeal to Messrs Friend and Thomas.

INDEX

Preliminary §§ 1–21

1

–4 These appeals

6

The Parliamentary history

7

The nature of hunting: background

8

–21 A summary of the parties' cases

Hunting in some more detail §§ 22–40

22

–29 The various quarries

30

–40 The reasons for and effect of hunting

31–34 Pest control

35–37 Sport and recreation

38 Hunting as a way of life

39–40 Hunting as an industry

The facts on which these appeals proceed §§ 41–51

The policy objectives of the Hunting Act §§52–63

52

–54 Introduction

55

The correct approach to legislative policy

56

–63 Our findings as to the policy objectives.

The HR appeal §§ 64–125

64

–66 Preliminary: the Human Rights Act

67

–70 The HR' case

71

–105 Article 8

74–86 Autonomy

87–92 Culture/community

93 Loss of livelihood/home

94–97 Use of home

98–99 The Divisional Court's approach

100–105 Our Conclusions on Article 8

106

–107 Article 11

108

–115 Article 1 of the First Protocol

116

–125 Justification and proportionality

The EC Appeal §§ 126–172

126

–129 Introduction

130

–146 Article 28

147

–157 Article 49

158

–172 Justification and proportionality in Community terms

The application for permission to appeal of Messrs Friend and Thomas §§ 173–179

Summary §§ 180–193

Preliminary

These appeals

1

This case concerns an issue that has been prominent, and highly controversial, in English public life for many years, and which reached its climax in the much-debated Hunting Act 2004 that (put shortly) prohibited the hunting with dogs of certain wild mammals. There are before the court two appeals from a single judgment of the Divisional Court [2005] EWHC 1677; [2006] EuLR 178 and an application for permission to appeal. We deal with the latter at the end of this judgment. In the first, "human rights", appeal the are the Countryside Alliance and a number of individuals. In the second, "European Community", appeal the are all individuals. They are identified in Appendix I to this judgment, where we reproduce the description of those Appellants and of some of the witnesses that was given in §§ 31–55 of the judgment of the Divisional Court. The Respondents took issue with some of the claims made by those persons about their situation and the effect on them of the Hunting Act. The Appendix nonetheless serves conveniently to identify the parties and what they say about their own particular cases.

2

There is a very substantial overlap between the two appeals. The facts asserted by the one group of are accepted and relied on by the other group of. The benefit of a successful appeal in the one case would redound to the in the other case. However, it became clear before us, rather more so than it had before the Divisional Court, that the contentions in the two appeals differ from each other in some respects, not all of which are matters of detail. In what follows we will address the appeals as a single case, whilst taking care where appropriate to identify the differences between them. We adopt the practice of the Divisional Court of speaking summarily of the HR appeal and the EC appeal.

3

A striking feature of the appeals is the burdensome nature of their presentation. The Divisional Court commented in strong terms on the weight of material that had been placed before it in an attempt to explicate the arguments: see §57 of its judgment. Despite the Divisional Court's very full account of that material, which the parties on specific enquiry by this court only criticised in marginal respects, the 32 files of evidence that were before the court below have only been reduced in number to 15, to which must be added the three volumes of material and six files of authorities filed by Mr Friend in support of his application for permission to appeal. It is right to say that most of the material emanates from the. Moreover, the comparative modesty that has been exercised by the parties to the appeal in respect of evidential material has not been matched in the citation of authorities. No effective attempt had been made to provide a consolidated index to these authorities, whether alphabetical or chronological, to ease our way through the maze of cases that were cited. Leaving Mr Friend aside, there are now before the court 18 files of authorities, containing the truly extraordinary number of 189 items. In addition, counsel between them filed 164 pages of skeleton argument, and addressed the court for the better part of five days.

4

All this means that, like the Divisional Court, our first duty is to distinguish the wood from the trees. In dealing with the background issues (which we suspect will be well-known to most or all of those who persevere with this judgment) we will largely rely on the work of the Divisional Court. Anyone who thinks that he needs to know more can find it in the full and impressive judgment of that court.

The Hunting Act 2004

5

It will be convenient first to set out the summary of the Hunting Act given by the Divisional Court. No criticism was made of the accuracy of this summary, though some reference was made to further parts of the Act.

5. Section 1 of the Hunting Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of...

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