Policing democratic freedoms Page 101 than ‘is necessary in a democratic society’. These issues are some of the most difficult in the interpretation of the Convention, and can also be very difficult for police officers when called upon to justify an action. ‘In accordance with the law’ Article 8 of the Convention requires that any interference with the rights it protects must be ‘in accordance with the law’. Articles 9 to 11 require that any interference be ‘prescribed by law’. These terms have the same meaning. They are intended to ensure that a person can, with a reasonable degree of certainty, foresee any limitations on the right concerned. This is a key safeguard against arbitrary action by the authorities. Foreseeability requires that: (i) there must be a legal basis in national law; (ii) the law must be accessible; and (iii) the law must allow a person to assess the likely consequences of his actions. As regards (i), the legal basis may be in statute or other legal norm provided for in the domestic legal system. Case law can constitute ‘law’. 299 In order to qualify as a ‘law’ in Convention terms, the measure must indicate the scope of any discretion conferred on the decision-making authorities with a reasonable degree of precision 300 . In order to ensure that any decisions taken by police are defensible, strict compliance with relevant laws and any applicable guidance is required. Recording decisions and the reasons for them is also important. ‘In pursuance of a legitimate aim’ Articles 8 to 11 specify a range of legitimate aims which interferences with protected rights may pursue. These are similar across the different Articles, but important differences do exist. For example, Articles 8, 10 and 11 include national security as a legitimate aim. However, Article 9 (freedom of thought conscience and religion) does not include this as a legitimate aim. In policing terms, the most relevant aims are likely to be the prevention of disorder or crime, the protection of public order and the protection of the rights and freedoms of others. There must be a link between the action complained of and the aim pursued. In practice, establishing this is not unduly difficult. For example, decisions taken to restrict or prohibit assemblies will often be aimed at preventing disorder. 299 Sunday Times v the United Kingdom, judgment of 26 April 1979. 300 Malone v the United Kingdom, judgment of 2 August 1984.
The European Convention on Human Rights and Policing Page 102 ‘Necessary in a democratic society’ For an action by police to be ‘necessary in a democratic society’, it must: (i) correspond to a pressing social need; (ii) be proportionate to the aim sought to be achieved; and (iii) relevant, sufficient reasons must exist for the action. In terms of assessing proportionality, three main issues are relevant: ffthe degree of the interference; ffwhether there were less intrusive means available; ffthe procedural safeguards available. It is difficult to assess the proportionality of an action in isolation. Issues such as the existence of alternative courses of action, the importance of the legitimate aim pursued, etc., will be important. Police officers are often called upon to justify their actions in limiting the rights protected by Articles 8 to 11. In particular, explanation of police actions may be required as part of any investigation carried out by accountability mechanisms, such as police Ombudsmen. In addition, it may assist in articulating the complexities of police decisions and actions to the public, media and civil society. Proportionality The considerations set out below are designed to assist officers in assessing whether actions are proportionate. They may be useful in helping to focus decision-making and to demonstrate that all relevant factors were taken into account. They are also important in ensuring that decisions are transparent, non-discriminatory and accountable. In many situations, there is no correct or incorrect answer. As acknowledged by the European Court of Human Rights, the ‘difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources’ 301 mean that a degree of latitude must be given to the police authorities in how they deal with a situation. In any situation, a range of different actions and decisions will be open to the police and other relevant authorities. By addressing the issues below, police officers will be in a strong position to show that their decision-making process was proportionate: 1. the reason(s) for the action taken. 2. whether other, less intrusive means could have been taken to achieve the same aim. 301 Kontrova v Slovakia, judgment of 31 May 2007 at paragraph 50.