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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough Of Lambeth v Howard  EWCA Civ 468 (6 March 2001)
Cite as: (2001) 33 HLR 58,  EWCA Civ 468
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Medawar QC)
Tuesday, 6th March 2001
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE HALE
|MAYOR AND BURGESSES OF THE LONDON|
|BOROUGH OF LAMBETH|
|- v -|
|JOHN ANDRE HOWARD||Appellant|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR. A. ARDEN Q.C. and MR. D. KILCOYNE (instructed by the Borough Solicitor, London Borough of Lambeth) appeared on behalf of the Respondent.
Crown Copyright ©
"First, that the consequences of the restraining order had been far more severe than was ever contemplated; second, that the applicant had been excluded from his home for 15 months which was much longer than the judge ever envisaged; third, that the applicant faced the prospect of losing the secure tenancy where he had been paying rent during all those 15 months and the prospect of being made homeless; fourth, that the applicant faced the prospect of many months before there would be any hope of resolution of this matter; fifth, that the inability of the applicant to return home prevented him from demonstrating that he can live in harmony with his neighbour."
"We are quite sure that all her [that is Miss Gabriel's] peace of mind incidentally would be destroyed, and probably her daughter's as well, the moment the defendant walked through that door."
"The substance of the claimant's case is that Tracy Gabriel, having become the unwilling object of Mr Howard's attentions as well as subject to the harassment for which he was convicted, Mr Howard was responsible for such interference with her life by making unfounded and utterly baseless allegations, even accosting her when she went out, as to now justify the making of a possession order against him, the effect of which will be to evict him. In my judgment the claimant [that is the local authority] is entitled to possession of number 7 Arden House provided the court considers it reasonable to make that order. This is an overriding requirement applicable to all discretionary cases. I remind myself that the question is not whether it is reasonable for the landlord to claim possession but whether it is reasonable for the court to make an order. This is to be determined in the light of circumstances as they exist at the date of the hearing, rather than at the commencement of proceedings or at any other date. In the exercise of discretion as to reasonableness the court must take into account all factors which might affect the interests of the landlord or the tenant and the interests of the public may also be relevant (see per Lord Greene, MR, in Cumming v Danson  2 All ER 653 at 655). Much turns on the trauma and impact of everything on Miss Gabriel and her daughter. Her way of life is to some extent in issue. She has tried to have herself transferred elsewhere as a tenant, she has exercised her right to buy lest the defendant be permitted to re-occupy number 7 Arden House, so that in due course she might be able to sell and move elsewhere. Mr Howard has not sought a transfer before now and continues to be in denial. Mark Hardy, his probation officer, found that to be significant and could not really explain why in his stated view Mr Howard presented a low risk of repeating his behaviour and continuing to harass Miss Gabriel. His counsel, Mr Cottle, urges the court to say that it is not reasonable for a possession order to be made. It would in his submission be sufficient protection for Miss Gabriel if she was protected by undertakings from Mr Howard including an undertaking by him to accept rehousing elsewhere. The difficulty with such proposals is that even if a possession order is made and such undertakings are to be put forward as a reason why an order for possession might be suspended, in the light of the whole history of this matter there looms the inevitability of a further hearing to adjudicate upon alleged breaches of any such undertakings of further harassment of Miss Gabriel.
I have considered the defendant's position and circumstances with care; his age, his health, the fact that he has not lived in Arden House since 1998 and that little of consequence occurred during the year pending his trial. He has convinced himself that he has not harassed Miss Gabriel. This further finding on a wider basis, that he has over a prolonged period done so, will be difficult for him to bear. He is unlikely to accept any criticism of his behaviour towards her. He has made his life as the representative of the people and as a person who believes he is well thought of by others and respected. This woman, Tracy Gabriel, is the effective cause of his downfall. He will inevitably deeply resent that. It cannot be otherwise. Is the risk involved so serious that no right-minded person could countenance putting Mr Howard back in accommodation adjoining that of Miss Gabriel again?Mr Cottle so invites consideration to be given of his position. Regretfully, I am driven to conclude that the risk is so serious that it should not be taken. It follows that in my judgment it is reasonable to make an order for possession of number 7 Arden House ... and that such order should not be suspended, whether on the basis of undertakings offered or otherwise. I make that decision in the light of the law as it is."
"I am asked to consider that decision in the light of the law as it will be under the Human Rights Act 1998 and after 2nd October 2000..."
"1. Everyone has the right to respect for his private and family life, his name, his home and correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security 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."
"At first sight Article 8 has no application to the present circumstances. By these proceedings the London Borough of Lambeth is not interfering with the exercise of Mr Howard's right to respect for his private and family life. Insofar as an extended meaning be given to the word 'interference', is such 'interference in accordance with the law'?Here it plainly is. Any interference by a public authority with family life must have a basis in domestic law and that is so here. The rule of law which confers a discretion is not in itself inconsistent with these requirements provided the scope of the discretion and the manner in which it is to be exercised are clear (see Anderson v Sweden  14 EHRR 615 at para 75). The scope and manner of exercise are clear and any discretion is to be exercised judicially. The grounds for 'interference' must pursue a legitimate aim, that is to say one of those listed in Article 8.2 and be necessary and proportionate. Mr Cottle submits that it is not proportionate to order immediate possession where a suitable alternative to that is available. However in a sense that begs the question. A possession order is in my judgment necessary and anything less than that, any qualified possession order, would not achieve the purpose intended, and having regard to all the circumstances in this case it is proportionate so to order. One bears in mind the need to find a fair balance between the protection of individual rights and the interests of the community at large. In this case it is necessary to bear in mind the protection of the individual rights, both of Mr Howard and of Miss Gabriel, as well as those of other members of the public. The principle of proportionality means no more than defining that 'fair balance'. If and insofar as the outcome of these proceedings constitute a potential interference with individual rights it is strictly proportionate to the legitimate aim pursued, be that aim 'the prevention of disorder' or 'the protection of the rights and freedoms of others.'"
"There can be no doubt that the scheme of introductory tenancies does interfere with the exercise of this right [the Article 8(1) right] but it is of course in accordance with the law as laid down in the Housing Act 1996. The question, therefore, is whether the interference is necessary in a democratic society for the protection of the rights and freedoms of others. Necessary in a democratic society does not mean indispensable; nor does it mean desirable. Convention jurisprudence has decided that it means:
(a) that the reasons given to justify the interference must be relevant and sufficient;
(b) that the interference must correspond to a pressing social need; and
(c) that the interference must be proportionate to the aim pursued..."
"Having heard and seen Miss Gabriel in the witness box for some considerable time, she convinced me that the matters of which she spoke did happen and did have the adverse effect upon her of which she spoke. Her recollection of each incident may not be entirely accurate in every detail but some confusion may arise in her recollection of each event now, but I accept the substance of what she has said in evidence."