Proportionality

• What is the meaning of proportionality?

  Where courts may hold that a public body’s decision is unlawful because it is disproportionate
• What are the three definitions of Proportionality by Hickman

  1. Whether the measure was suitable to achieve the desired objective.
  2. Whether the measure was necessary for achieving the desired objective.
  3. Whether, even so, the measure imposed excessive burdens on the individual it affected.
• When is proportionality normally used as a ground for JR?

  English courts rely on proportionality when dealing with a point of EU law or one made under the European Convention of Human Rights
• What is the main way that proportionality is different from Wednesbury unreasonableness according to Lord Steyn?

  (3) even the “heightened scrutiny” version of Wednesbury unreasonableness developed in ex parte Smith is not as intense as proportionality and not sufficient to meet the requirements of the ECHR. (proportionality test is more structured than Irrationality test)
• What is the first element of the Proportionality test established in Bank Mellant v HM Treasury?

  Is the measure’s objective sufficiently important to justify the limitation of a fundamental right?
• What is the second element of the Proportionality test established in Bank Mellant v HM Treasury?

  Is the measure rationally connected to that objective?
• What is the third element of the Proportionality test established in Bank Mellant v HM Treasury?

  Could a less intrusive measure have been used?
• What is the last element of the Proportionality test established in Bank Mellant v HM Treasury?

  Having regard to these matters and the severity of the consequences, has a fair balance been struck between the rights of the individual and the interests of the community?
• What is the L.P of R (Daly) v Secretary for the Home Department? (where courts held that blanket policy for prisoners to not be present during cell searches was unlawful)

  L.P: Held that restriction of prisoners' right to correspondence to legal representation was only allowed if there was proper justification for it.

  L.P: "No justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted”
• What are the other L.P of R (Daly) v Secretary for the Home Department?

  L.P: “While interference with that right by a public authority might be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interfered with a prisoner's exercise of his right under art 8(1) to an extent much greater than necessity require”
• What is the L.P of Campbell v UK?

  L.P: held that if police officers open a correspondence that was between a prisoner & their lawyer, it would be seen as violating that prisoner’s Article 8 rights
• What is the third rule in Campbell v UK?

  (3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.
• What is the fourth rule in Campbell v UK?

  (4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped.'