Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairsdalston Projects Ltd and Others v Secretary of State for Transport

Held, dismissing the appeals (Lord Leggatt JSC dissenting in the result in the first case), (1) that it was well established that, when reviewing a measure on grounds of proportionality under the Convention for the Protection of Human Rights and Fundamental Freedoms, a first instance court was required to make its own assessment of whether the measure was proportionate, and hence lawful, rather than merely asking whether the public authority which had adopted the measure had misdirected itself or acted irrationally or been guilty of procedural impropriety; that, when carrying out such an assessment, the first instance court would give appropriate respect and weight to the views of the public authority as to how the balance between the interests of the individual and of the general community should be struck; that the context relevant to determining the measure of respect to be given would include the importance of the Convention right, the degree of interference with that right and the extent to which the courts were more or less well placed to adjudicate, on grounds of relative institutional expertise and democratic accountability; that, in the present cases, although the court was able to assess for itself the evidence regarding the impact of the measures on the claimants, the Secretaries of State had special constitutional responsibilities in relation to steps taken in an effort to respond to and contain Russia’s invasion of Ukraine and superior institutional competence to make the relevant assessment whether the sanctions imposed might serve some useful purpose in responding to and containing Russia’s actions; that, therefore, the Secretaries of State were to be accorded a wide margin of appreciation in making their judgments about (i) whether the objectives of the measures were sufficiently important to justify the limitation of a fundamental right, (ii) whether there was a rational connection between the measures and those objectives, (iii) whether a less intrusive measure could have been used and (iv) whether a fair balance had been struck between the Convention rights of the claimants and others concerned and the interests of the community; and that, further, the Secretaries of States were entitled to that margin of appreciation in respect of reliance on reasons given after the measures were imposed, since their judgments as to the compatibility of the measures with the claimants’ Convention rights were not fixed in time at the point when the measures were first introduced but had been subject to constant review since then and in the course of the present proceedings (post, paras 120–124, 126–130, 136–137).

Bank Mellat v HM Treasury (No 2) [2014] AC 700, SC(E) and R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945, SC(E) applied.

In re Brewster [2017] 1 WLR 519, SC(NI) distinguished.

(2) That on an appeal against a proportionality assessment carried out by a lower court, there were two possible approaches which the appellate court might adopt, namely (i) to treat its role as confined to a review to check whether the lower court’s assessment in relation to the proportionality of the relevant measure had been arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the lower court, or (ii) to make its own fresh assessment of the proportionality of the relevant measure without examining whether the lower court had erred in its approach; that while there was a need for flexibility in the approach to be adopted by an appellate court, depending on the circumstances, the choice of approach had to be made on a principled basis, so that the parties and the appellate courts had a reasonable idea of the correct approach to be adopted in any case, and ought to be the same at each appellate stage; that the appropriate provisional starting point for an appellate court in deciding which approach to adopt was that the review approach was likely to be appropriate, although the fresh assessment approach would be appropriate where it was important that the appellate court should give its own opinion about the proportionality of a measure and its compatibility with Convention rights, which was likely to be an important consideration in cases where the decision would provide guidance for other cases or where the subject matter had major social or political significance; and that, in the present cases, the Court of Appeal should have made its own fresh assessment of the proportionality of the measures and the Supreme Court should do the same, since each case was a test case concerning a significant point of general principle in the context of the sanctions regime under the Russia (Sanctions) (EU Exit) Regulations 2019 (post, paras 142–144, 147–149, 160–161, 163–165, 249).

In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2023] AC 505, SC(NI) and In re JR123 [2025] 2 WLR 435, SC(NI) applied.

(3) That, carrying out a fresh assessment of the proportionality of the designation and the detention direction made in the present cases, (i) measures imposed under the 2019 Regulations pursued the legitimate aim of limiting and deterring Russian aggression in Ukraine, (ii) there was a rational connection between the measures imposed in the present cases and that aim, since each measure made a plausible contribution to the cumulative effect of all the measures taken under the 2019 Regulations, (iii) no less intrusive measures could have been used which would not have compromised the achievement of that aim in an unacceptable way and (iv) the measures struck a fair balance between the individual rights of the claimants and the general interest of the community, having regard to the importance of the legitimate aim, the connection between the measures and that aim, and the fact that sanctions often had to be severe and open-ended if they were to be effective; and that, accordingly, both the designation of the claimant in the first case and the detention of the claimants’ yacht in the second case were proportionate measures that had been lawfully issued and maintained by the Secretaries of State (post, paras 173, 177, 179, 188, 191, 193–194, 197, 202–205, 213, 223–224, 243–244, 253).

Guidance for appellate courts when determining whether to adopt the review approach or the fresh assessment approach on an appeal against a proportionality assessment carried out by a lower court (post, paras 160, 162).

Decision of the Court of Appeal sub nom Dalston Projects Ltd v Secretary of State for Transport [2024] EWCA Civ 172; [2024] 1 WLR 3327 affirmed on partly different grounds.