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INTERLINKING AND HYPERLINKING

IRAC Analysis on the case

Buckley

Vs.

United Kingdom

Miss. Shriya Chandankar

BA.LLB

Roll No. 157

PRN: 15010321157

In

January, 2017

Under the guidance of

Prof. Abhijit Vasmatkar, Mrs. M.V Chandramathi, Mrs. K.

Shanti & Miss. Afrin Khan

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE
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TABLE OF CONTENTS
Sr.no Description Page no.

1 Introduction 03

2 Facts of the case 04-05

3 Issues 06

4 Rules 07

5 Analysis 08-10

6 Conclusion

INTRODUCTION
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IRAC method as a tool for legal analysis of a case stands for Issue, Rule,
Application/ Analysis, Conclusion. It is one way to structure legal analysis. An
effective tool where it is organized around each of these elements for each and
every issue and sub-issue(s) identified as a legal problem.

This method is used to analysis the present case:

Buckley........................................ Appellants

Vs.

United Kingdom.................................. Respondent

(1997) 23 E.H.R.R. 101

Before the European Court of Human Rights

Application No. 20348/92

(The President , Judge Bernhardt ; Judges Thr Vilhjlmsson , Pettiti , Loizou , Morenilla , Freeland ,
Repik , Jungwiert , Lhmus )

Decided January On: 25 September 1996

Bench: The President , Judge Bernhardt ; Judges Thr Vilhjlmsson , Pettiti , Loizou , Morenilla ,
Freeland , Repik , Jungwiert , Lhmus

Facts of the case:

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The applicant, Ms. June Buckley, is a Gypsy by birth who has always followed the
traditional lifestyle of British travelers. However, in 1988 she decided to station the three
caravans in which she had been living with her children and mother on a piece of land
she owned in South Cambridgeshire. June Buckley believed that stationing the caravans
there would enable her to raise her children in a stable environment and therefore
contribute to their proper education.

In January 1989, June Buckley obtained permission on a personal temporary basis to

station the caravans on her land, but in March 1990 the District Council rejected her next
application for a temporary planning permit. The District Council then issued an
enforcement notice for the removal of the caravans. The local authorities argued that the
continued presence of caravans on the site was harmful to the character and appearance
of the countryside and detracted from the rural and open quality of the landscape. In
addition, the authorities pointed out that adequate provision had been made for Gypsies
elsewhere.

June Buckley appealed the decision, but her appeal was dismissed by the Secretary of
State on virtually the same grounds, with the additional argument that the concentration
of Gypsy sites in the area had reached the maximum desirable. Ms. Buckley did not obey
the removal notice, and was found guilty by the Magistrates' court; in January 1992, she
was sentenced to a fine for refusing to obey the removal notice.

In spite of the decision, Ms. Buckley refused to move the caravans and in 1994 she
applied again for permission to station the caravans on her land. In November 1994, the
District Council rejected the application and in December 1995, Ms. Buckley's appeal of
that decision was dismissed. In addition to the arguments which were used by the
authorities in 19911992, they now also claimed that the applicant had been offered the
viable alternative of stationing her caravans at an officially designated caravan site which
had been opened in 1992, several hundred meters away from her land. By 1995, Ms.
Buckley had been prosecuted on two other occasions for failing to comply with the
enforcement notice and for violating planning permissions' rules. On one of these
occasions she had again been sentenced to pay a fine.

In February 1992, June Buckley lodged a complaint at the European Commission of

Human Rights. In her complaint, as well as during the procedure before the Convention
organs, June Buckley claimed that the refusal of the British authorities to grant her
permission to live on her own land violated her right to respect for home and family life,
as protected by Article 8 of the ECHR. Later on, during the deliberations before the
Court, Ms. Buckley made an additional complaint that British legislation on planning
policy does not take due respect to the traditional lifestyle of Gypsies and is
discriminatory in character (ECHR, Article 14 taken together with Article 8).

The September 25, 1996 judgment of the European Court of Human Rights came after a
landmark decision of the European Commission of Human Rights, which in January
1995 decided by 7 votes to 5 that British authorities had violated Article 8 of the
Convention. (The Commission did not take a stand with respect to Article 14 of the
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Convention). The Commission's decision affirmed that the British authorities had
infringed upon Ms. Buckley's right to family life and accepted her argument that she is
prohibited from living in her caravans on her own land, where her children can grow up
in a stable environment and receive a continuous education", and that she was prevented
from pursuing the traditional lifestyle of a Gypsy"

Considerable weight in the decision of the Commission was given to the argument that
the traditional lifestyle of Gypsies is an inherent element in their right to family life. The
Commission decided that by not fully taking that into account, British authorities had
placed a disproportionate burden on the applicant when interfering with her right to
family life.

In its judgment, the Court, like the Commission, recognized that the measures taken
against Ms. Buckley interfered with her right to respect for her home. Therefore the Court
concentrated on the issue of whether those measures were necessary in a democratic
society", as stipulated by Article 8, Paragraph 2 of the Convention. Although the Court
admitted that on the domestic level another decision could have been taken on the merits
of Ms. Buckley's request for a planning permit (Judgment, Paragraph 84), it concluded
that in the government's measures, a due balance had been struck between the interests of
the general community and the applicant's right to establish a home on her land. Unlike
the Commission, the Court concluded that the means employed for the achievement of
the legitimate aim could not be regarded as disproportionate (Judgment, Paragraph 84). In
making the decision, the majority of the Court resorted to arguments derived from the
procedure of the domestic regulatory framework, which in the Court's view ...contained
adequate procedural safeguards protecting her (Ms. Buckley's) interest under Article 8..."

The Court also refrained from taking a stand on the British authorities planning policy
from considering its effect on Gypsies, arguing that the measures which were taken
against Ms. Buckley were not based on either the 1968 Caravan Sites Act or the 1994
Criminal Justice and Public Order Act. In a powerful dissenting opinion, In his dissenting
opinion, Judge Pettiti recalled that Gypsies are one of Europe's most suffering minorities.

S However, the same planning considerations did not justify a negative decision by the
court when weighed against the right to respect for home and family life (ECHR, Article
8). By giving priority to the protection of the landscape over the protection of family life,
the Court had reversed the ranking of fundamental rights. A proper balance had therefore
not been achieved according to judge Petti.

While considering Ms. Buckley's claim that Article 14 taken together with Article 8 were
violated, Judge Pettiti stressed that the only acceptable discrimination under Article 14 is
positive discrimination which is meant to achieve equality of rights through equality of
opportunities. He took the position that the British legislation regulating planning policy
contains a number of provisions which expressly refer to Gypsies in order to restrict their
rights by means of administrative rules.
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Issues:

Whether the continued use of the land as a gypsy caravan site would detract from the
rural nature of the area.

Whether the right of Mrs. Buckley in respect for her home and whether the British
authorities have violated the basic right of families by removing their caravans.

Whether the applicant was a victim of discrimination on the grounds of her Gypsy status,
contrary to Article 14 taken together with Article 8 of the ECHR.
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RULES

1968 Caravan Sites Act

1994 Criminal Justice and Public Order Act
Town and Country Planning Act 1990
Planning and Compensation Act 1991
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Analysis:

Whether the continued use of the land as a gypsy caravan site would detract from the rural
nature of the area.

As it was responded by the authorities in regards to the applicant claim to settle down
permanently as it was refused because of road safety reasons. A development is carried out
without the grant of the required planning permission, the local authority may issue an
enforcement notice , if it considers it expedient to do so having regard to the provisions of the
development plan and to any other material considerations of the 1990 Act which was inter
linked. To which the applicant hyper linked the particular case which is discussed below:

Wrexham County Borough Council -v- Berry; South Buckinghamshire District Council -v-
Porter and another; Chichester District Council -v- Searle and others in which, the appellants
challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they
had purchased. It was held that the Parliament had given to local authorities exclusive
jurisdiction on matters of planning policy, but when an authority sought assistance in
enforcement by requesting an injunction, the role of the court was not merely supervisory, but
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original, and it had a duty to assess each case on its merits. The remedy of an injunction, carrying
the threat of imprisonment is personal to the proposed injunctee. The court was not bound to
follow the views of the local authority in enforcing planning control, and the proposed injunction
must be both just and proportionate. The balance between Roma and other parts of society will
always be difficult to find.

The issue further discussed as the law provides that planning permission is required for the
carrying out of any development of land under section 57 of the 1990 Act while a change in the
use of land for the stationing of caravans can be constitute a development which was derieved
from the case of Restormel Borough Council v. Secretary of State for the Environment and
Rabey [1982] Journal of Planning Law 785

Whether the right of Mrs. Buckley in respect for her home and whether the British
authorities have violated the basic right of families by removing their caravans.

In the present case the national authorities did not legitimately assess whether the point pursued
was proportionate to the candidate's entitlement to respect for her home and to the seriousness of
the encroachment of that privilege. At no stage amid the domestic proceedings was the issue
before the authorities considered in terms of a privilege of the candidate secured by the
Convention, for the Government denied all through that a privilege to respect for the house was
in issue and subsequently that there had been any obstruction with that privilege. The candidate's
interests, faced with the requirements of the assurance of the countryside, were just considered in
abstract general terms, such as "the undisputed requirement for extra gypsies' parade site
provision" or "the candidate's gypsy status" . There was never any specify of the candidate's
entitlement to respect for her home or of the significance of that privilege to her, given her
money related and family situation. Nor was any record taken of the possible consequences for
the candidate and her kids were to be expelled from her property. To this contention the applicant
cited a case which can be clearly understood and is given below and making the intention of the
applicant more clear.

London Borough of Hounslow -v- Powell, Leeds City Council -v- Hall SC the tenant occupied
the property as his home, but was not a secure tenant of the local authority. The Court was asked
whether, in granting a possession order in such a case, the court was obliged to consider the
proportionality of the order requested. Powell had been given emergency accomodation as a
homeless person, but had accrued substantial arrears. Frisby and Hall were both probationary
tenants. It was held that the principle set out in Pinnock applied equally in these cases. In any
case where a local authority sought to retake possession of somebodys home, a court asked to
order possession must consider the proportionality of the proposed order, provided that the tenant
raises the issue of proportionality and shows that it is seriously arguable. The court must be
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shown a legitimate aim, including the vindication of the rights as owner, or to enable the
authority to manage and fulfil its statutory duties. Save in an unusual case, the authority need not
be required to particularise further its reasons.
Section 127(2) assumes the lawfulness of the proposed order, and the issue of proportionality
goes as to that lawfulness.

While considerable weight in the decision of the Commission was given to the argument that the
traditional lifestyle of Gypsies is an inherent element in their right to family life. The
Commission decided that by not fully taking that into account, British authorities had placed a
disproportionate burden on the applicant when interfering with her right to family life. The
British Government denied that its policy was discriminatory. Yet a number of legal provisions
expressly refer to gypsies in order to restrict their rights by means of administrative rules.
However, the only acceptable discrimination under Article 14 is positive discrimination, which
implies that in order to achieve equality of rights through equality of opportunity it is necessary
in certain cases to grant additional rights to the deprived members of the population such as the
underclasses of developed countries, and the gypsy and Jenische communities.

Whether the applicant was a victim of discrimination on the grounds of her Gypsy status,
contrary to Article 14 taken together with Article 8 of the ECHR.

Examining whether the measures taken by British authorities against the applicant complied with
the requirements set forth by Art. 8 (2) of the Convention, the Commission agreed that while the
measures had been in accordance with the law and pursued a legitimate aim, namely
preservation of the environment and public health, public safety and well-being. The
commission concluded that the measures applied against June Buckley failed to meet the test of
being necessary in a democratic society" and therefore in violation of Article 8 of the ECHR.
While considering Ms. Buckley's claim that Article 14 taken together with Article 8 were
violated, the only acceptable discrimination under Article 14 is positive discrimination which is
meant to achieve equality of rights through equality of opportunities. He took the position that
the British legislation regulating planning policy contains a number of provisions which
expressly refer to Gypsies in order to restrict their rights by means of administrative rules.
Although the 1968 Caravan Sites Act was originally intended to promote acceptance of Gypsies
in towns and villages, the use made of this legislation has had the opposite effect; the legislative
framework contains either too many administrative obstacles or else the alternative proposals are
inadequate. Since the rules are applicable only to travelers, those rules are discriminatory.
In spite of the negative decision with respect to Ms. Buckley's application, the dissenting
opinions, as well as the Commission's report, should have a constrained yet positive effect on the
strengthening of Gypsies and Roma through law. On the occasion of Buckley v. the United
Kingdom, the Convention organs certified that Article 8 of the ECHR gives insurance to the
customary lifestyle of Gypsies as an inborn component of their entitlement to respect for home
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and family life. This stand is probably going to all the more easily permit individuals from the
Gypsy and Roma minority to make their cases before domestic jurisdictions, as well as before
the European Convention organs, in cases which include infringement of rights ensured by
Article 8 of the Convention.

The Court afforded greater protection of the home and accommodation in the Niemietz and
Gillow judgments, situations in which there was in fact less risk to family life. Essentially, the
Convention ought, in the case of gypsy families, to inspire the greatest possible respect for
family life, transcending planning considerations. Although the 1968 Caravan Sites Act was
originally intended to promote acceptance of Gypsies in towns and villages, the use made of this
legislation has had the opposite effect; the legislative framework contains either too many
administrative obstacles or else the alternative proposals are inadequate.

Conclusion:
As the case of buckley v. united kingdom, clearly mention about the importance of inter linking
and hyper linking in a decision making process of a judiciary. As the cases cited by the applicant,
gave a fruitful result at the end. This was the first case ever initiated by a Gypsy applicant which
has been referred to the Court by the European Commission of Human Rights. The said court
was also able to decide on the issue dealing with, whether the United Kingdom's legislation on
town planning discriminated against Gypsies by preventing them from pursuing their traditional
lifestyle. As the reasons given the government authorities before or at the initial stage of the case
were in the view for the public benefit and road safety issues which was later cleared up, but still
the applicant was denied of her right to settle permanently in home. The problems faced by
gypies came up, with various town planning legistature which hinders there movement though
the british government was up with some protection legislation for such groups. As of the
concerns for the plans upon the land were raised and regarding the concentration of population of
the applicants community in the particular place was also considered. As there was already 15
pitches were formed for the settlement of the community while the people who resided on the
land illegitimately approached the union before the applicant could. The 1968 Act and the 1994
Criminal Justice and Public Order Act prevented gypsies from pursuing their traditional lifestyle
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by making it illegal for them to locate their caravans on unoccupied land. If the applicant were
obliged to leave her land, she would be exposed to the constant worry of having to find a place
where she could lawfully stay, her children's education would be jeopardised and so on. To this
by the verdict of the court which provided the applicant a settlement, which is my opinion was
necessary as to protect the interest of the particular group and for the better viewing of the
culture and tradition along with welfare of people.