Policing and the European Convention on Human Rights Page 17 Legal certainty Put simply, the idea of legal certainty essentially involves the ability of an individual to act within a settled framework without fear of arbitrary or unforeseeable state interference. As the Strasbourg Court has put it, domestic law is expected ‘to be compatible with the rule of law, a concept inherent in all the articles of the Convention’. 20 The consequences for police action involving interferences with the rights of individuals (for example, when effecting an arrest or detention under Article 5, which requires any deprivation of liberty to be ‘lawful’ and ‘in accordance with a procedure prescribed by law’, or carrying out a search or using surveillance or taking steps to maintain public order involving an interference with the rights of protestors, when the police action must be ‘in accordance with law’ or ‘prescribed by law’) is that any such action must not only have a basis in domestic law, but also that the quality of that domestic law must meet the requirements of accessibility and foreseeability: First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. 21 Necessity and proportionality There are frequent references in the text of the European Convention on Human Rights to the need to show the ‘necessity’ of action that has interfered with the rights of an individual. What this concept entails is dependent upon its context. In one case involving free speech, the Court summarised its approach as follows: ‘The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued. In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in [freedom of expression] and, moreover, that they based themselves on an acceptable assessment of the relevant facts.’ 22 20 Amuur v France, judgment of 25 June 1996 at paragraph 50. 21 Sunday Times v the United Kingdom (No 1), judgment of 26 April 1979 at paragraph 49. 22 Jersild v Denmark, judgment of 23 September 1994 at paragraph 31.
The European Convention on Human Rights and Policing Page 18 What this means is that the ‘necessity’ of State action concerning civil liberties (such as interferences with the rights of protestors) essentially involves the search for an appropriate ‘balance’ between state action and individual right. The Court has stated that ‘‘necessary’ … is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’…’; rather, ‘it implies the existence of a ‘pressing social need’.’ 23 However, when applied to domestic decision-making (such as the policing of a public protest), the extent or intensity of international scrutiny by the Strasbourg Court is often dependent upon the specific circumstances of the case. It may be easier, for example, for the police to justify the seizure of publications considered obscene rather than those seeking to convey a political message. 24 One important point is that reasons for police action giving rise to an interference with a civil or political right need to be both relevant and sufficient. The test of ‘sufficiency’ requires that there be not only a rational connection between the means employed and the aim sought to be achieved, but also that a fair balance be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In carrying out its assessment, the Court has also identified certain characteristics of a ‘democratic society’. This is where it is expected that certain ‘values’ will guide policing determinations; for example, pluralism, tolerance and broadmindedness have been identified by the Court as the hallmarks of such a European ‘democratic society’. 25 The point about shared European values can be taken further. As has been noted above, deciding whether an interference is ‘necessary in a democratic society’ may also involve considering whether the law or practice in question is out of line with standards generally prevailing elsewhere in European States as it is more difficult to justify a measure as being ‘necessary in a democratic society’ if the great majority of other Council of Europe states adopt a different approach. However, it is also necessary to note that other provisions in the Convention of relevance to policing are subject to qualifications which are more stringently expressed. For example, Article 2 of the Convention guarantees the right to life, subject to an exception where the deprivation of life results from the 23 Sunday Times v the United Kingdom (No 1), judgment of 26 April 1979 at paragraph 59. 24 See p. 98. 25 Handyside v the United Kingdom, judgment of 7 December 1976 at paragraph 49.