King's / Queen's Bench Division of the High Court

KB-2024-004175 - [2025] EWHC 2050 (KB)

Fecha: 01-Ago-2025

Article 10 and Article 11 rights: proportionality

Article 10 and Article 11 rights: proportionality

30.

An application for injunctive relief that interferes with the qualified Article 10 and 11 right of a Defendant will give rise to additional considerations. Any interference with the Article 10 and 11 rights of a Defendant must be a proportionate means to a legitimate aim, and necessary in a democratic society.

31.

In DPP v Ziegler & Ors [2022] AC 408 the Supreme Court set out the test to be applied by a Court when considering the proportionality of any injunctive relief sought. In summary, determination of the issues that arise under Articles 10 and 11 require the Court to ask itself five questions:

Is what the defendant did in exercise of one of the rights in articles 10 or 11?

ii)

If so, is there an interference by a public authority with that right?

iii)

If there is an interference, is it ‘prescribed by law’?

iv)

If so, is the interference in pursuit of a legitimate aim as set out in paragraph (2) of article 10 or 11, for example the protection of rights of others?

If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?

32.

The fifth and final question will necessarily require a fact specific inquiry in which the Court performs an evaluation of the circumstances of the case before it in order to assess whether any interference is proportionate. That inquiry will itself require the Court to engage with four further questions:

Is the aim sufficiently important to justify interference with a fundamental right?

ii)

Is there a rational connection between the means chosen and the aim in view?

iii)

Are there less restrictive means available to achieve that aim?

iv)

Is there a fair balance between the rights of the individual and the general interests of the community, including the rights of others?

33.

In Zeigler (at paragraph 72) the Supreme Court adopted a non-exhaustive list of factors relevant to any proportionality assessment as had been set out by Lord Neuberger in City of London Corporation v Samede [2012] PTSR 1624 (See Paragraphs 39 to 41) which in summary are:

the extent to which the continuation of the protest would breach domestic law;

ii)

the importance of the precise location to the protestors;

iii)

the duration of the protest;

iv)

the degree to which the protestors occupy the land;

the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public;

vi)

whether the views giving rise to the protest relate to ‘very important issues’ and whether they are ‘views which many would see as being of considerable breadth, depth and relevance’; and

vii)

whether the protestors ‘believed in the views that they were expressing’.