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The recent judgment of the European Court of Human Rights in the case of McLeod v the UK (1998) places important safeguards on police common law powers to enter a home to prevent a breach of the peace.
Following their divorce, the applicant's ex-husband, Mr McLeod, accompanied by his solicitor's clerk and other members of his family, went to the former matrimonial home to collect certain items of property.
Fearing there might be a breach of the peace, McLeod's solicitors had arranged for two police officers to be present. Ms McLeod had been ordered by the County Court to deliver up the property, but there was no order permitting entry to the home. When they arrived, Ms McLeod's mother was the only person in the house and she let the group in, on being told by the police they were from the court and had a court order to execute.
In subsequent proceedings, Ms McLeod successfully established that the group (other than the police) had trespassed, but both the High Court and Court of Appeal found that the police had entered lawfully because they had reasonable grounds for believing a breach of the peace might take place.
The European Court, however, found by seven votes to two that the police officers' entry int o the applicant's home violated the right to respect for her private life and home, under Article 8 of the Convention. The court found a violation because the police officers did not verify whether Mr McLeod was entitled to enter Ms McLeod's home, and held that once they arrived at the house to find that Ms McLeod was not at home, they should not have entered because there was little or no risk of disorder.
In applying Article 8, the court considered whether interference with the wife's rights had been "necessary in a democratic society", and therefore whether it was proportionate to the interference. This is a very different, and stricter, test than that applied by domestic courts, involving proper consideration of competing rights and interests. The case serves as an illustration of the way in which incorporating the European Convention on Human Rights into domestic law will change the decision-making process of UK judges.