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This was posted in that other forum link edited and might help anyone subject to repossession...
Probably should also be read in conjunction with link edited
I think this means that as:
that the Court has to take into account s8 when making judgement, but only if the defendant raises it.
In terms of proportionality, would it be proportional that missing a couple of £300/month payments (as an example) result in losing your home?
Possibly more importantly, if the balance of the account was in dispute due to arrears charges, this dispute would need to be resolved before possession could be given... Would any BS be willing to try and justify their arrears charges in a Court?
What does anyone make of this ?
Basically a county court Judge flagged this up as a reason to grant a temporary stay of eviction. But, although para 4 & 50 of the judge say it doesn't apply to private property owners but only public property owners, it does actually apply it was just deliberately ignored in this judgement so as not to make this judgement even more complicated & fuzzy.
You need to read the whole judgement to understand it all. But then, as the country court judge said, no one quite understands it yet as it is unclear & has huge implications which mean :
Every repossession (not just public landlord tenancies) hearing has to consider the individual facts of that particular case in order to consider the concept of 'proportionality' according to the European Court Human Rights article 8.. If this has not been done, it breaks the ECHR article 8 and is therefore unlawful.
THEREFORE, WHEN PROPORTIONALITY IS CONSIDERED, THE FACTS OF EACH AND EVERY SEPARATE CASE MAY THEN GIVE THE COURT MUCH WIDER DISCRETION TO MAKE ORDERS OTHER THAN AUTOMATIC REPOSSESSION AS HAS BEEN THE CASE PREVIOUSLY.
IN OTHER WORDS, A COURT MAY DECIDE A SUB-PRIME LENDER HAS BEHAVED DISPROPORTIONALLY (THEY ALL DO, AS WE KNOW) AND THE JUDGE MIGHT MAKE AN ORDER LESS FAVOURABLE TOWARDS THE LENDER WHICH HAS NOT BEEN POSSIBLE UNTIL THIS RECENT PINNOCK JUDGEMENT.
The Pinnock judgement
21. This appeal gives rise to four main issues, of increasing specificity. The first is
whether the jurisprudence of the European Court of Human Rights (“EurCtHR”)
requires that, before making an order for possession of property which consists of a
person’s home pursuant to a claim made by a local authority (or other public
authority), a domestic court should be able to consider the proportionality of evicting
that person from his home under article 8, and, in the process of doing so, to resolve
any relevant factual disputes between the parties. We deal with that question in paras
22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is
what this conclusion means in practice in relation to claims for possession, and related
claims, in relation to residential property. The third issue (paras 65-107 below) is
whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be
interpreted so as to comply with the requirements of article 8, or whether at least some
aspects of that regime are incompatible with the occupiers’ article 8 Convention
rights. The fourth issue (paras 108-132 below), which requires a fuller consideration
of the facts of this case, is how the appeal should be disposed of in the light of the
answers on the first three issues.
First issue: what does the Convention require of the courts?
The nature of the issue
22. So far as relevant, article 8 of the Convention provides:
“1. Everyone has the right to respect for ... his home... .
2. 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 ... the economic
well-being of the country, for the prevention of disorder or crime, ...or
for the protection of the rights ... of others.”
It is also appropriate to refer to article 6, which, so far as relevant, provides:
“In the determination of his civil rights and obligations ... everyone is
entitled to a fair ... hearing ... by an independent and impartial tribunal
established by law.”
23. The argument on behalf of Mr Pinnock is as follows.
(a) At any rate where the person seeking possession is a “public authority”, a court invited to make an order for possession of a person’s home must be satisfied that article 8 is complied with.
(b) Accordingly, in the present proceedings, Judge Holman had to satisfy himself that the order for possession which he was being invited to make complied with article 8.
(c) Article 8, when read together with article 6, required the Judge, as the relevant independent tribunal, to be satisfied that the order for possession
(i) would be “in accordance with the law”, and
(ii) would be “necessary in a democratic society” – i e, that it would be proportionate.
(d) The order for possession was “in accordance with the law” since it was made pursuant to the provisions relating to demoted tenancies in the 1985 and 1996 Acts, which are in principle unobjectionable under article 8.
(e) However, Mr Pinnock was not given the opportunity to raise with the court the question whether the order for possession was, in all the circumstances of this case, proportionate. Therefore article 8 was violated.
(f) Further, in order to determine proportionality, the court should have had power to resolve for itself any issues of fact between the Council and Mr Pinnock, and to form its own view of proportionality, rather than adopting the traditional judicial review approach taken by the Judge.
(g) Either the legislation should be interpreted to have the effect contended for in points (e) and (f), or this court should make a declaration of incompatibility.
Second issue: the application of this conclusion in general
55. The conclusion that, before making an order for possession, the court must be
able to decide not only that the order would be justified under domestic law, but also
that it would be proportionate under article 8(2) to make the order, presents no
difficulties of principle or practice in relation to secure tenancies. As explained above,
no order for possession can be made against a secure tenant unless, inter alia, it is
reasonable to make the order. Any factor which has to be taken into account, or any
dispute of fact which has to be resolved, for the purpose of assessing proportionality
under article 8(2), would have to be taken into account or resolved for the purpose of
assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that section, like proportionality under article 8(2), requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.
Basically a county court Judge flagged this up as a reason to grant a temporary stay of eviction. But, although para 4 & 50 of the judge say it doesn't apply to private property owners but only public property owners, it does actually apply it was just deliberately ignored in this judgement so as not to make this judgement even more complicated & fuzzy.
You need to read the whole judgement to understand it all. But then, as the country court judge said, no one quite understands it yet as it is unclear & has huge implications which mean :
Every repossession (not just public landlord tenancies) hearing has to consider the individual facts of that particular case in order to consider the concept of 'proportionality' according to the European Court Human Rights article 8.. If this has not been done, it breaks the ECHR article 8 and is therefore unlawful.
THEREFORE, WHEN PROPORTIONALITY IS CONSIDERED, THE FACTS OF EACH AND EVERY SEPARATE CASE MAY THEN GIVE THE COURT MUCH WIDER DISCRETION TO MAKE ORDERS OTHER THAN AUTOMATIC REPOSSESSION AS HAS BEEN THE CASE PREVIOUSLY.
IN OTHER WORDS, A COURT MAY DECIDE A SUB-PRIME LENDER HAS BEHAVED DISPROPORTIONALLY (THEY ALL DO, AS WE KNOW) AND THE JUDGE MIGHT MAKE AN ORDER LESS FAVOURABLE TOWARDS THE LENDER WHICH HAS NOT BEEN POSSIBLE UNTIL THIS RECENT PINNOCK JUDGEMENT.
The Pinnock judgement
21. This appeal gives rise to four main issues, of increasing specificity. The first is
whether the jurisprudence of the European Court of Human Rights (“EurCtHR”)
requires that, before making an order for possession of property which consists of a
person’s home pursuant to a claim made by a local authority (or other public
authority), a domestic court should be able to consider the proportionality of evicting
that person from his home under article 8, and, in the process of doing so, to resolve
any relevant factual disputes between the parties. We deal with that question in paras
22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is
what this conclusion means in practice in relation to claims for possession, and related
claims, in relation to residential property. The third issue (paras 65-107 below) is
whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be
interpreted so as to comply with the requirements of article 8, or whether at least some
aspects of that regime are incompatible with the occupiers’ article 8 Convention
rights. The fourth issue (paras 108-132 below), which requires a fuller consideration
of the facts of this case, is how the appeal should be disposed of in the light of the
answers on the first three issues.
First issue: what does the Convention require of the courts?
The nature of the issue
22. So far as relevant, article 8 of the Convention provides:
“1. Everyone has the right to respect for ... his home... .
2. 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 ... the economic
well-being of the country, for the prevention of disorder or crime, ...or
for the protection of the rights ... of others.”
It is also appropriate to refer to article 6, which, so far as relevant, provides:
“In the determination of his civil rights and obligations ... everyone is
entitled to a fair ... hearing ... by an independent and impartial tribunal
established by law.”
23. The argument on behalf of Mr Pinnock is as follows.
(a) At any rate where the person seeking possession is a “public authority”, a court invited to make an order for possession of a person’s home must be satisfied that article 8 is complied with.
(b) Accordingly, in the present proceedings, Judge Holman had to satisfy himself that the order for possession which he was being invited to make complied with article 8.
(c) Article 8, when read together with article 6, required the Judge, as the relevant independent tribunal, to be satisfied that the order for possession
(i) would be “in accordance with the law”, and
(ii) would be “necessary in a democratic society” – i e, that it would be proportionate.
(d) The order for possession was “in accordance with the law” since it was made pursuant to the provisions relating to demoted tenancies in the 1985 and 1996 Acts, which are in principle unobjectionable under article 8.
(e) However, Mr Pinnock was not given the opportunity to raise with the court the question whether the order for possession was, in all the circumstances of this case, proportionate. Therefore article 8 was violated.
(f) Further, in order to determine proportionality, the court should have had power to resolve for itself any issues of fact between the Council and Mr Pinnock, and to form its own view of proportionality, rather than adopting the traditional judicial review approach taken by the Judge.
(g) Either the legislation should be interpreted to have the effect contended for in points (e) and (f), or this court should make a declaration of incompatibility.
Second issue: the application of this conclusion in general
55. The conclusion that, before making an order for possession, the court must be
able to decide not only that the order would be justified under domestic law, but also
that it would be proportionate under article 8(2) to make the order, presents no
difficulties of principle or practice in relation to secure tenancies. As explained above,
no order for possession can be made against a secure tenant unless, inter alia, it is
reasonable to make the order. Any factor which has to be taken into account, or any
dispute of fact which has to be resolved, for the purpose of assessing proportionality
under article 8(2), would have to be taken into account or resolved for the purpose of
assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that section, like proportionality under article 8(2), requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.
Article 8
Right to respect for private and family life
1.Everyone has the right to respect for his private and family life, his home and his correspondence.
2.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.
A mortgage lender is not, unlike for example a Court, hearing the repossession proceedings a public authority to which article 8 applies.
Public authorities
Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3)In this section “public authority” includes—
(a)a court or tribunal, and
(b)any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
The intention of Parliament was that a wide range of bodies performing public functions would fall within the obligation under section 6 to act in a manner compatible with the “Convention rights” established under the Act.
However, while the Convention had been designed to protect the individual from abuse of power by the State, the Human Rights Act was enacted at a time when the map of the public sector had been redrawn, as privatisation and contracting-out had, over several decades, increased the role of the private and voluntary sectors in the provision of public services. This development was acknowledged and considered by those who drafted and debated the Act. In particular, it was clearly envisaged that the Act would apply beyond activities undertaken by purely State bodies, to those functions performed on behalf of the State by private or voluntary sector bodies, acting under either statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the obvious
governmental bodies. Section 6 identified two distinct categories of “public authorities” which would have a duty to comply with the Convention rights.
First, under section 6(3)(a), “pure” public authorities (such as government departments, local authorities, or the police) are required to comply with Convention rights in all their activities, both when discharging intrinsically public functions and also when performing functions which could be done by any private body. So, for example, a local authority must as a pure public authority comply with the non-discrimination standards imposed by Article 14 of the Convention not only in its provision of public housing but also in its dealings with building contractors.
Second, under section 6(3)(b), those who exercise some public functions but are not “pure” public authorities are required to comply with Convention human rights when they are exercising a “function of a public nature” but not when doing something where the nature of the act is private (section 6(5)). Only those bodies which fall within either of these categories (“pure” or “functional” public authorities) have a direct obligation under the Act to comply with Convention rights. The meaning of “public authority” is therefore crucial to securing comprehensive human rights protection.
Right to respect for private and family life
1.Everyone has the right to respect for his private and family life, his home and his correspondence.
2.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.
A mortgage lender is not, unlike for example a Court, hearing the repossession proceedings a public authority to which article 8 applies.
Public authorities
Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3)In this section “public authority” includes—
(a)a court or tribunal, and
(b)any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
The intention of Parliament was that a wide range of bodies performing public functions would fall within the obligation under section 6 to act in a manner compatible with the “Convention rights” established under the Act.
However, while the Convention had been designed to protect the individual from abuse of power by the State, the Human Rights Act was enacted at a time when the map of the public sector had been redrawn, as privatisation and contracting-out had, over several decades, increased the role of the private and voluntary sectors in the provision of public services. This development was acknowledged and considered by those who drafted and debated the Act. In particular, it was clearly envisaged that the Act would apply beyond activities undertaken by purely State bodies, to those functions performed on behalf of the State by private or voluntary sector bodies, acting under either statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the obvious
governmental bodies. Section 6 identified two distinct categories of “public authorities” which would have a duty to comply with the Convention rights.
First, under section 6(3)(a), “pure” public authorities (such as government departments, local authorities, or the police) are required to comply with Convention rights in all their activities, both when discharging intrinsically public functions and also when performing functions which could be done by any private body. So, for example, a local authority must as a pure public authority comply with the non-discrimination standards imposed by Article 14 of the Convention not only in its provision of public housing but also in its dealings with building contractors.
Second, under section 6(3)(b), those who exercise some public functions but are not “pure” public authorities are required to comply with Convention human rights when they are exercising a “function of a public nature” but not when doing something where the nature of the act is private (section 6(5)). Only those bodies which fall within either of these categories (“pure” or “functional” public authorities) have a direct obligation under the Act to comply with Convention rights. The meaning of “public authority” is therefore crucial to securing comprehensive human rights protection.
(3)In this section “public authority” includes—
(a)a court or tribunal, and
(a)a court or tribunal, and
In terms of proportionality, would it be proportional that missing a couple of £300/month payments (as an example) result in losing your home?
Possibly more importantly, if the balance of the account was in dispute due to arrears charges, this dispute would need to be resolved before possession could be given... Would any BS be willing to try and justify their arrears charges in a Court?
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