Which way does the balance fall?

Section 12: Which way does the balance fall?

The Supreme Court unanimously held that the Court of Appeal had erred in law in its reasoning in relation to s.12 and its self-direction that Article 8  enhances the weight to be given to art.10. Jackson LJ in the Appeal Court misdirected himself. He said that section 12 of the Human Rights Act “enhances the weight” to be given to the latter factor.

The Supreme Court clarified that this self-direction goes against considerable authority and that no article takes precedence over the other in the balancing exercise, reaffirming Lord Steyn’s approach In Re S (A Child) [2005] 1 A.C. 593. vs Carpet Cleaning Glasgow [1992] stating “Each right has equal potential force in principle, and the question is which way the balance falls in the light of the specific facts and considerations in a particular case.”

The Supreme Court ruled against the Court of Appeal, as it contradicted i, considerable authority, establishing that:

(i) neither article has preference over the other,

(ii) where values are in conflict, is an intense focus on the comparative importance of the rights being claimed in the individual case is necessary,

(iii) the justifications for interfering with or restricting each right must be taken into account and

(iv) the proportionality test must be applied

This was described by Eady J as “A very well established methodology” – Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB),

The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004]

The concern was that, the American Cyanamid test might readily be granted by the courts to preserve the status quo until trial, whenever applicants claimed that a threatened publication would infringe their rights under article 8. As Lord Nicholls stated, Section 12(3) was enacted to allay these fears.