CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 24755/94                            Sally McLeod                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 9 April 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-36) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-34). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 35-36). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 37-61) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 37). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 38). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 8 of the Convention           (paras. 39-54). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 55). . . . . . . . . . . . . . . . . . . . 10        D.    As regards Article 1 of Protocol No. 1           (paras. 56-58). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 59). . . . . . . . . . . . . . . . . . . . 11        E.    Recapitulation           (paras. 60-61). . . . . . . . . . . . . . . . . . 11   DISSENTING OPINION OF Mr. C.L. ROZAKIS JOINED BY Mr. G. RESS . . . . . . . . . . . . . . . . . . . 12   APPENDIX   :     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 14   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen, born in 1952 and resident in Middlesex.   3.    The application is directed against the United Kingdom. The respondent Government were represented by their Agent, Mr. Martin Eaton, Deputy Legal Adviser, Foreign and Commonwealth Office.   4.    The case concerns the entry of the police in the applicant's house. The applicant invokes Article 8 of the Convention and Article 1 of Protocol No. 1.   B.    The proceedings   5.    The application was introduced on 22 May 1994 and registered on 2 August 1994.   6.    On 24 October 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 16 February 1996 after an extension of the time-limit fixed for this purpose. The applicant replied on 12 April 1996.   8.    On 26 June 1996 the Commission (First Chamber) declared admissible the applicant's complaints concerning the alleged interference with her home, private life and the enjoyment of her possessions. It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 10 July 1996 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted observations on 3 October 1996. The Government did not avail themselves of this opportunity.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI   12.   The text of this Report was adopted on 9 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   In 1986 the applicant and her husband separated and in 1988 they divorced. Following separation, there were proceedings before the Uxbridge County Court about the former matrimonial home and its contents. These proceedings were described by the High Court in its judgment of 12 November 1992 as substantial and acrimonious.   17.   On 30 June 1989 the Uxbridge County Court ordered the division of the furniture and other property to be found in the former matrimonial home in accordance with a list identified in the order. On 23 August 1989 the same court ordered the applicant to make arrangements for the delivery of her former husband's property. The order was backed with a penal notice. On 28 September 1989 the Uxbridge County Court made a committal order suspended for seven days so that the applicant could deliver to her former husband the property identified in the list on or before 6 October 1989.   18.   On 3 October 1989 the applicant's former husband, accompanied by his brother and sister and a solicitor's clerk, went to the former matrimonial home to collect the property belonging to him. His solicitors had made arrangements for two police officers to be present. When the police officers arrived, they were given a copy of the list but not of the court order. According to one of the police   officers, the solicitor's clerk offered to return to his office to get a copy of the order, but the police officer did not require this.   19.   The applicant was not present at her house when the police and her former husband's party arrived. Her mother was, however, there. The applicant's former husband, his relatives, the solicitor's clerk and the police officers gained access in the house in circumstances which were subsequently found by the courts to constitute trespass insofar as the former husband, his relatives and the solicitor's clerk were concerned. In an affidavit sworn on 21 November 1990, the applicant's mother claimed that one police officer told her that they were from the court and had a court order to execute. When she opened the door the applicant's former husband and his party entered.   20.   It was subsequently established by the courts that the police did not participate directly in the removal of any property items. It was the applicant's former husband and his family who started removing a number of items which a police officer checked against the list. Part of the property had been placed on a van when the applicant arrived. She objected to the property being removed. One of the police officers intervened insisting that the van should not be unloaded and that the applicant's former husband should be allowed to drive away. In his view, any disputes were to be resolved later by the parties' solicitors. In the evening of 3 October 1989 the applicant's mother, who had recently suffered a stroke, was taken to hospital. She was discharged later on the same evening.   21.   The applicant instituted criminal proceedings against her former husband and the other members of his family who had taken part in the incident of 3 October 1989. The charges were dismissed.   22.   The applicant further instituted, together with her mother, three sets of civil proceedings, one against her former husband's solicitor, another against her former husband and his brother and sister, and a third against the police.   23.   On 26 January 1992 the applicant's mother died.   24.   On 12 November 1992 the High Court dismissed the third action on the ground that the police officers had not trespassed on the applicant's land or goods. The court considered that the applicant had not agreed to her husband removing his property from the former matrimonial home on 3 October 1989. However, a police officer had a duty to prevent any breach of the peace which he reasonably apprehended would occur. In accordance with common law he was entitled to enter onto and remain on private property without the consent of the occupier or the owner. The police had reasonable grounds for apprehending that a breach of peace might take place in the present case. Thus it was not necessary to determine whether the applicant's mother had consented to the police officers entering the house. Although the applicant was not present she could have returned and the police officers were, as a result, entitled to remain on the premises until the removal of the property was concluded. The police officers did not participate in the disturbance of the applicant's property. The only possible involvement was that of one police officer who had checked that only the items on the list figuring in the court's order were removed.   25.   On 27 November 1992 the Brentford County Court pronounced on the applicant's two remaining civil actions against her former husband, his brother and sister and his solicitors. It considered that there had not been any agreement between the applicant and her former husband for him to collect his property on 3 October 1989 and that the applicant's mother had not given permission to the applicant's former husband and the persons accompanying him to enter the house. The court concluded that, as a result, the applicant's former husband and the persons accompanying him had trespassed on the applicant's land and property. The applicant and her mother's estate were awarded £1,950 pounds with interest by way of compensation.   26.   On 1 December 1992 the applicant appealed against the decision of 12 November 1992 of the High Court on the ground that the police officers should have made enquiries before entering her house, that there was no breach of peace or threat of a breach of peace and that the police were negligent in failing to give adequate protection to her mother.   27.   In a decision issued on 3 February 1994 the Court of Appeal considered that the applicant's main complaint, as developed before it, was that the police officers' presence had facilitated the trespass by the applicant's husband and the persons accompanying him. The court accepted that neither the applicant nor her mother had consented to the entry of the applicant's former husband and   of the persons accompanying him to the house. It also accepted that the police officers had taken no active part in removing the property apart from one of them checking the items removed against the court list. However, both police officers entered the house and it was possible that one of them knocked at the door.   28.   The court further noted that section 17 para. 1 (e) of the Police and Criminal Evidence Act 1984 provided that a police officer could enter any premises for the purpose of saving life or limb or preventing serious damage to property and section 17 para. 5 abolished all the rules of common law under which a police officer had power to enter premises. However, section 17 para. 6 provided that nothing in section 17 para. 5 affected any power of entry to deal with or prevent a breach of the peace.   29.   The court considered that the principal authority under common law was the decision of the Divisional Court in Thomas v. Sawkins [1935] KB 249. In that case police officers had entered and remained in a hall where a public meeting which had been extensively advertised was about to take place, although they had been refused admission by the organisers of the meeting. Lord Hewart, who presided over the Divisional Court, considered the following:        "I think that there is quite sufficient ground for the      proposition that it is part of the preventing power, and,      therefore, part of the preventive duty, of the police, in      cases where there are such reasonable grounds of      apprehension as the justices have found here, to enter and      remain on private premises."   Moreover, Judge Elver stated, in relation to entering premises in connection with an affray, the following:        "... I cannot doubt that he has a right to break in to      prevent an affray which he has reasonable cause to suspect      may take place on private premises."   He considered, therefore, that the police officers were justified in what they were doing. Finally, Judge Lawrence considered the following:        "If a constable in the execution of his duty to preserve      the peace is entitled to commit an assault, it appears to      me that he is equally entitled to commit a trespass."   30.   The court further considered that another precedent of relevance for the applicant's case was McGowan v. Chief Police Constable of Kingston Upon Hull, reported in the Times on 21 October 1967, where the Divisional Court had held that the police were entitled to enter a private house where they feared there could be a breach of peace arising out of a domestic quarrel.   31.   The court recalled that the judgment in Thomas v. Sawkins had been subjected to criticism in that it appeared to infringe the basic principle that the law would not intervene until an offence had actually been committed. It also recalled that it had been suggested that the precedent established in Thomas v. Sawkins should be limited to public meetings.   32.   However, the court was satisfied that Parliament in section 17 para. 6 of the Police and Criminal Evidence Act 1984 had recognised that there was a power to enter premises to prevent a breach of the peace as a form of preventive justice. It further considered that there was not any satisfactory basis for restricting that power to particular classes of premises such as those where public meetings were held. If the police reasonably believed that a breach of the peace was likely to take place on private premises, they had power to enter those premises to prevent it. The apprehension must be genuine and it must relate to the near future, ie the risk of a breach of peace must be real and imminent. The courts could exercise scrutiny not only of the police officer's belief at the time but also of the grounds for his belief.   33.   Relying on the facts as established by the High Court, the Court of Appeal considered that the police officers entered the applicant's house to prevent a breach of the peace and they were reasonable in concluding that there was a danger of such a breach. In this light, the court decided to dismiss the appeal with costs against the applicant. Leave to appeal to the House of Lords was refused.   34.   On 1 March 1994 the applicant applied to the House of Lords for leave to appeal against the decision of the Court of Appeal of 3 February 1994. On 18 May 1994 the House of Lords refused the application.   B.    Relevant domestic law   35.   The common-law powers of the police to enter private premises to prevent a breach of the peace, as preserved by section 17 para. 6 of the Police and Criminal Evidence Act 1984, are defined in the court decisions referred to in the above-mentioned judgment of the Court of Appeal in the applicant's case.   36.   A breach of the peace is "an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done": R v. Howell, [1982] QB 416.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   37.   The Commission has declared admissible the applicant's complaints that the entry of the police in her house on 3 October 1989 and the subsequent failure of the courts to grant her legal protection amounts to a violation of her right to respect for her home and private life and her right to peaceful enjoyment of her possessions.   B.    Points at issue   38.   The issues to be determined in the present case are:   -     whether there has been a violation of Article 8 (Art. 8) of the      Convention;   -     whether there has been a violation of Article 1 of Protocol No. 1      (P1-1).   C.    As regards Article 8 (Art. 8) of the Convention   39.   Article 8 (Art. 8) of the Convention provides as relevant:        "1.   Everyone has the right to respect for his private ...      life (and) his home ...        2.    There shall be no interference by a public authority      with the exercise of this right except such as is in      accordance with the law and is necessary in a democratic      society in the interests of national security, public      safety or the economic well-being of the country, for the      prevention of disorder or crime, for the protection of      health or morals, or for the protection of the rights and      freedoms of others."   40.   The applicant submits that the entry of the police in her house was unlawful and unnecessary. The police were not acting in accordance with their common-law powers. The applicant invites the Commission to take into consideration the extensive criticism to which Thomas v. Sawkins has been subjected by academic writers and the widely held view that its value as precedent is restricted to the facts before the court at the time. McGowan v. Chief Constable of Kingston upon Hull cannot be regarded as authoritative support for a wide view of police powers under Thomas v. Sawkins and there is no other precedent.   41.   The applicant further submits that there was no breach of the peace in progress when the police decided to enter her home. It was the applicant's mother who was caused harm and who was put in fear of harm being done after the entry.   The police officers failed to check the validity of the information they had received concerning the right of the applicant's former husband to enter her home. As a result, the trespass to the applicant and her mother's goods and home was a "highly probable or very likely consequence" of the police's negligence.   42.   The applicant wishes to stress that there had been no previous police involvement in her dispute with her former husband and no domestic violence either during the marriage of after the separation. Neither were the police faced with an urgent or immediate situation. By failing to check the court order, the police lent their authority to unlawful acts.   43.   The Government submit that the interference with the applicant's rights was in accordance with the law. Section 17 para. 6 of the Police and Criminal Evidence Act 1984 is unequivocal in its terms. The rule in Thomas v. Sawkins is a well established principle of English law and has been recently confirmed to apply in respect of a domestic dispute in a private house in circumstances analogous to the applicant's in McGowan v. Chief Constable of Kingston upon Hull. The rule in Thomas v. Sawkins is formulated with sufficient precision to enable the police and the citizens to regulate their conduct. When Parliament last reviewed police powers under common law to enter private premises to deal with or prevent a breach of peace in 1984, they considered that there was no need for clarification.   44.   The Government further argue that the interference was necessary in a democratic society for the prevention of disorder or crime. The husband's solicitor invited the police to attend the applicant's home during the visit of her former husband, because he feared that there might be   breach of the peace because of the history of the court proceedings between the applicant and her former husband. Given this highly volatile situation, the police might have been failing in their duty if they had not acceded to the request. The two police officers did not attend the home to facilitate the removal of the former husband's property, but to ensure that no harm was done to any person or anyone's property. The necessity of the police officers' presence was proven when the applicant arrived on the scene.   45.   The Government contend that the fact that it subsequently transpired that the applicant's former husband and his party were trespassing is irrelevant to the issue of whether the police officers' actions were necessary. The police were not there to determine whether there was an agreement between the applicant's former husband and the applicant or her mother to enter her home. Faced with the immediacy of the situation, the police had to decide whether there was a genuine threat of a breach of the peace in the near future. Their actions were subjected to high scrutiny by the national courts and their propriety was upheld. The Commission can only conclude that it was unnecessary for the police officers to enter the applicant's home, if the national courts' judgments were manifestly incorrect.   46.   The Commission considers that the entry of the police into the applicant's house to prevent a breach of the peace constituted an "interference" with her right "to respect for her private life and home". Such an interference is contrary to Article 8 (Art. 8) unless it is "prescribed by law", directed at one or more of the legitimate aims set out in paragraph 2 and is "necessary in a democratic society" for achieving them.   47.   The Commission will first examine whether the interference was "in accordance with the law". The Commission recalls that the expression "in accordance with the law" requires firstly that the impugned measure should have some basis in national law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (Eur. Court HR, Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 27, para. 88).   48.   The Commission notes in this connection that the power of the police to enter private premises without a warrant to prevent a breach of the peace has, since the Police and Criminal Evidence Act 1984, a statutory basis. It is true that section 17 subsection 5 defines the scope of that power by reference to common law. However, the domestic courts which examined the applicant's case cited two judgments of the Divisional Court (Thomas v. Sawkins [1935] KB 249 and McGowan v. Chief Police Constable of Kingston Upon Hull [1968] Crim LR 34) from which it derives that the police are entitled to enter a private house without a warrant to prevent a breach of the peace arising out of a domestic quarrel.   49.   The Commission further notes that it has found that the concept of breach of the peace can be considered adequately defined in domestic law to be an "offence" within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention and is sufficiently certain to comply with the notion of "prescribed by law" under Article 10 para. 2 (Art. 10-2) of the Convention (Steel, Needham, Polden and Cole v. the United Kingdom, Comm. Report 9.4.97, paras. 105 with further references and 148, unpublished).   50.   The Commission considers that the above-mentioned generally accessible judgments provided reasonable foreseeability that the police had the right to enter and remain in her house to prevent a domestic quarrel which could have arisen on the occasion of her former husband's attempt to remove the property items which appeared on the list appended to the court's order. It follows that the requirement under Article 8 para. 2 (Art. 8-2) of the Convention that any interference with the right to respect for one's private life and home must be "prescribed by law" has been complied with.   51.   The Commission further considers that the interference pursued a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention, i.e. it was "in the interests of the prevention of disorder".   52.   The Commission will next examine whether the interference was "necessary in a democratic society". The Commission recalls that, in Article 8 para. 2 (Art. 8-2) as in several other provisions of the Convention, the phrase "necessary in a democratic society" implies the existence of a "pressing social need". The Contracting States enjoy a certain margin of appreciation in assessing whether such a need exists, but this goes hand in hand with a European supervision which covers the basic legislation and the decisions applying it, even those given by an independent court (Eur. Court HR, Silver and others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, pp. 37-38, para. 97). Moreover, measures constituting an interference with rights protected under Article 8 (Art. 8) of the Convention, in order to be considered necessary in a democratic society, must be proportionate to the legitimate aim pursued (Eur. Court HR, Beldjoudi v. France judgment of 26 March 1992, Series A no. 234, p. 27, para. 74).   53.   The Commission notes in this connection that the applicant's divorce had given rise to a long and acrimonious dispute with her former husband. On 3 October 1989 the police were informed that the applicant's former husband together with his solicitor and some relatives would go to the former matrimonial home to collect property belonging to him according to a court order. While the police were given the list attached to the order, they were not shown the order itself, which as it subsequently turned out gave the applicant another three days in which to deliver the property items in question to her former husband. Two police officers accompanied the applicant's former husband and his party to the applicant's home where her mother was to be found. According to the national courts, it was possible that a police officer knocked on the door. As for the rest, their role was limited to ensuring that only the items mentioned in the list were removed. Moreover, when the applicant arrived, after the items had been loaded on a van, and she objected to the property being removed, one of the police officers indicated that the van should be allowed to drive away and that any disputes were to be resolved later by the parties' solicitors.   54.   The Commission considers that the police officers acted with restraint. Moreover, there was the risk that, had the former husband and his solicitor and the other members of his party gained access on their own to the house, there would have been considerable disturbances and risk of damage. Finally, the police officers had inevitably limited possibilities of knowing the precise nature of private and family relations, but were under a duty to take seriously an indication from one party that trouble may arise. In the light of all the above, the Commission considers that it was within the State's margin of appreciation to consider the police officer's presence in the applicant's house necessary to avoid a breach of the peace. It follows that the measures taken were not, in the particular circumstances of the case, disproportionate to the legitimate aim pursued. As a result, the interference with the applicant's right under Article 8 (Art. 8) can be regarded as "necessary in a democratic society".        CONCLUSION   55.   The Commission concludes, by 14 votes to 2, that in the present case there has been no violation of Article 8 (Art. 8) of the Convention.   D.    As regards Article 1 of Protocol No. 1 (P1-1)   56.   Article 1 of Protocol No. 1 (P1-1) provides as relevant:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions."   57.   The applicant submits that the police and the courts failed to show respect for her right to peaceful enjoyment of her possessions.   58.   The Commission notes that the police did not seize any items from the applicant's house. Their mere presence there, entirely lawful itself, while her former husband trespassed on her land cannot amount to an interference with her possessions (see, mutatis mutandis, No. 9614/81, Dec. 12.10.83, D.R. 34, p. 119). As a result, there was no violation of Article 1 of Protocol No. 1 (P1-1).        CONCLUSION   59.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 1 of Protocol No. 1 (P1-1).   E.    Recapitulation   60.   The Commission concludes, by 14 votes to 2, that in the present case there has been no violation of Article 8 (Art. 8) of the Convention (para. 55).   61.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 1 of Protocol No. 1 (P1-1) (para. 59).        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber                                                    (Or. English)               DISSENTING OPINION OF Mr. C.L. ROZAKIS                      JOINED BY Mr. G. RESS        We regret that we are unable to agree with the majority of the members or the First Chamber that, in the circumstances of the case, there has been no violation of Article 8 with regard to the applicant's right to respect for her home and private life. On the contrary, we believe that the case presents problems concerning the balancing of the interests involved under the test of necessity in a democratic society.        First, we note that the police entered the applicant's home on 30 October 1989 using their common-law power, preserved under section 17 para. 6 of the Police and Criminal Evidence Act 1984, to enter private premises to prevent a breach of the peace. However, we also note that, under section 17 para. 1 (e) of the same Act, the police have the power to enter, without a warrant, any premises for the purpose of saving life or limb or preventing previous damage to property. The practical effect of section 17 para. 6 of the 1984 Act would, therefore, appear to be to preserve the power of the police to enter private premises in situations which do not involve any threats to life or limb and where there is no risk of serious damage to property. We consider, however, that serious questions arise as to the necessity of the existence of such a power in a democratic society. Entering private premises without the occupier's consent and without a warrant issued by a judicial authority to prevent something less that a threat to life or limb, or a threat of serious damage to property appears to us a disproportionate measure.        Secondly, we think that the police acted in a manner which gives the impression that they took sides in favour of the former husband of the applicant, rather than acting objectively by preventing what was, in the circumstances of the case, a possible breach of the peace. We hold that the negligence of the police was, principally, in failing to take care to examine the court order of 28 September 1989, which allowed the applicant to deliver to her former husband the property identified in the list before 6 October 1989. Had they asked to examine the order, they would have realised that 3 October 1989 was not the day of the delivery and that the applicant had not consented to her former husband's entering the premises and taking away the property identified in the list. In other words, the police should have appreciated that, in the absence of an agreement between the parties and in view of the contents of the order, the husband of the applicant did not have an automatic right to enter her premises; and by acting as they did, they legitimised by their presence and participation an otherwise illegal act, namely trespassing. As a consequence of their primary omission in failing to examine the order, the police would appear to have acted for the former husband, rather than as neutral guardians of the correct application of the law. The lack of impartiality on the part of the police is further evidenced by the fact that one of the police officers told the applicant's mother that they, the police, were from the court and had a court order to execute, which statement is recorded in the affidavit sworn by the applicant's mother on 21 November 1990 and has never been disproved; and the fact that, when the applicant arrived, one of the police officers intervened insisting that the van should not be unloaded and that the applicant's former husband should be allowed to drive away. In consequence of their behaviour, the police assisted the applicant's former husband both in entering the applicant's home illegally and in removing the property therein without restraint.        Under such circumstances, we believe that Article 8 has been violated.