[2025] EWHC 2751 (Admin)

Article 1 of the First Protocol – the legal principles

There is a considerable body of case law in the ECtHR on the interpretation and application of A1P1. In the absence of special circumstances, domestic courts should follow the “clear and constant jurisprudence of the Strasbourg Court, recognising that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court” (R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] AC 1312 at [20]).

The duty of domestic courts is to keep pace with that jurisprudence as it evolves over time, no more, no less. If a domestic court takes a conservative approach to a problem it is open to a party to make an application to the ECtHR. But if a domestic court goes further and grants relief against the Government or a public authority, they cannot make an application to Strasbourg to have a mistaken view of the ECHR rectified. Accordingly, a domestic court should not go further than it can be confident that the ECtHR would go (R (AB) v Secretary of State for Justice [2021] UKSC 28; [2022] AC 487 at [54]-[59]; R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2023] AC 559 at [63]).