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Chamber judgment: Keegan v. United Kingdom

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of Keegan v. United Kingdom (application no. 28867/03).

The Court held unanimously that there had been:

· a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;

· a violation of Article 13 (right to an effective remedy) of the Convention.

Under Article 41 (just satisfaction), the Court awarded 3,000 euros (EUR) each to Gerard, Moira and Carl Keegan and EUR 2,000 each to Michael, Katie and Sophie Keegan for non-pecuniary damage. The Court also awarded a global sum of EUR 9,500 for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicants are Gerard Keegan, an Irish national born in 1955 and his wife, Moira Keegan, a United Kingdom national born in 1963, and their children Carl, Michael, Katie and Sophie, British citizens born in 1985, 1996, 1997 and 1997, respectively. They were all resident in Liverpool at the time of the events.

On 21 October 1999 at approximately 7 am the police, mistakenly believing that an armed robber lived there, forcibly gained entry into the applicants’ home and carried out a search of the premises. They used a metal ram to make a hole in the door. On finding no one but the applicants in the house, the police sergeant apologised to Mr and Mrs Keegan and arranged for repairs to be made to their front door.

The applicants brought proceedings against the Chief Constable of Merseyside Police for, among other things, the tort of maliciously procuring a search warrant. They alleged that they had been caused terror, distress and psychiatric harm. Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder.

Finding against the applicants, the County Court judge found that the police were investigating serious and violent offences and had not acted with reckless indifference to the lawfulness of their acts, which element was necessary for the tort of maliciously procuring a search warrant. He expressed sympathy for what the applicants had endured, but, on examining the competing interests of the need to bring to justice violent criminals and the need to protect the sanctity of the family’s home, found that the scales came down in favour of the police.

The Court of Appeal rejected the applicants’ appeal. While Lord Justice Kennedy found that if proper enquiries had been made and the results properly reported, there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence did not suffice).

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 10 September 2003 and declared admissible on 11 October 2005.

Judgment was given by a Chamber of 7 judges, composed as follows:

Josep Casadevall (Andorran), President,

Nicolas Bratza (British),

Giovanni Bonello (Maltese),

Matti Pellonpää (Finnish),

Kristaq Traja (Albanian),

Ljiljana Mijovi? (citizen of Bosnia and Herzegovina),

Ján Šikuta (Slovakian), judges,

and also Lawrence Early, Section Registrar.

• 3. 

  Summary of the judgment²

Complaints

The applicants complained about the police forced entry to search their home under Article 8 (right to respect for home) and that they had no effective remedy to prove their civil claim under Article 13 (right to an effective remedy).

Decision of the Court

Article 8

The Court agreed with the domestic courts that the police did not act with malice. It found, however, that although they might have had relevant reasons for their actions, those reasons were based on a misconception which could, and should, have been avoided by taking proper precautions.

For the Court, the fact that the police did not act maliciously was not a decisive factor to be taken into account as the Convention was geared to protecting against abuse of power, however motivated or caused. Furthermore, the Court did not agree that limiting actions for damages to cases of malice was necessary to protect the police in their vital functions of investigating crime. The exercise of powers to interfere with home and private life had to be confined within reasonable bounds to minimise its impact on the personal life of the individual. In a case where basic steps to verify the connection between the address and the offence under investigation were not effectively carried out, the resulting police action, which caused the applicants considerable fear and alarm, could not be regarded as proportionate.

That finding, the Court pointed out, did not imply that any search, which turned out to be unsuccessful, would fail the proportionality test, only that a failure to take reasonable and available precautions would do so. The Court accordingly concluded that the balance had not been properly struck in the present case and held unanimously that there had been a violation of Article 8.

Article 13

The Court noted that the applicants’ proceedings seeking damages for the forcible entry and its effect on them were unsuccessful. The domestic courts held that there were no grounds to take proceedings against the police action as damages only lay where malice could be proved. The courts were unable to examine issues of proportionality or reasonableness and, as various judges in the domestic proceedings noted, the balance was set in favour of protection of the police in such cases. In the light of those circumstances, the Court found that the applicants did not have available to them a means of obtaining redress for the interference with their rights under Article 8 and held unanimously that there had been a violation of Article 13.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press Contacts 

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Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.