Liberty is concerned that the high-pitch electronic pulse does not differentiate between young people who are engaged in illegal activity and young people who are not. Therefore this is not a proportionate response to loiterers and could adversely affect young people.
Liberty believes that the Mosquito does not encourage young people to act responsibly but presumes that they will not. It could violate teenagers' rights to enter a public space and sends out a negative message.
We believe that the Mosquito could be successfully challenged in the courts, which should put an end to its use.
The Environmental Challenge
Perhaps the best way of challenging the use of this device would be via the Environmental Protection Act 1990 (EPA). Under this Act the local authority has a duty to investigate “noise emitted from a premises” that is a nuisance, and a duty to issue an ‘abatement notice’ if a nuisance is found.
An accepted legal definition of public nuisances are acts “which obstruct or cause inconvenience or damage to the public in the exercise of rights” and “which inflicts damage, injury or inconvenience on all the Queen's subjects or on all members of a class who come within the sphere or neighbourhood of its operation”.
The Human Rights Challenge
From a human rights point of view we believe that it could be argued that the Mosquito device constitutes a disproportionate interference with Article 8 of the European Convention on Human Rights (ECHR) - the right to respect for private life, which includes the right to respect for bodily integrity. It could also be argued that this interference with Article 8 rights is discriminatory because it only affects young people, and Article 14 prohibits discrimination.
More Information on Article 8 and Article 14
Article 8: the right to a private and family life, home and correspondence
Everyone has the right to a respect for his/her private and family life, his/her home and his/her correspondence.
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 of morals, or for the protection of the rights and freedoms of others.
The ‘private life’ limb of Article 8 is relevant to the use of the Mosquito. Article 8 is a qualified right which means it may be interfered with if such interference is in accordance with the law, is in pursuit of a legitimate aim and is necessary in a democratic society. This last requirement means that any interference must be proportionate. Liberty takes the view that the use of the Mosquito constitutes a disproportionate interference with an individual’s right to a private life.
Article 14: prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The ‘other status’ wording has been held to include age.
Article 14 does not provide a general or free-standing prohibition on discrimination and does not apply unless the facts at issue fall under another Convention right, in this case Article 8.
