Human Rights Case Summaries

Mohamed v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 Feb 2010)

On 10 February 2010, the Court of Appeal (the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench presiding) published its decision in the protracted and highly publicised litigation involving Binyam Mohamed.  The decision addresses a number of important legal issues that derive from the working relationship between the intelligence services of the UK and the USA, including the appropriate balance between non-disclosure and public-interest immunity, and principles of open justice.  As the Chief Justice astutely concluded (at [57]), the decision also engages ‘concepts of democratic accountability and, ultimately, the rule of law itself’.

G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 (20 January 2010)

The English Court of Appeal has held that proceedings that are not by themselves determinative of civil rights or obligations may still be subject to the requirements of art 6(1) of the European Convention on Human Rights where the outcome of the proceedings will have a substantial influence or effect on the determination of those rights or obligations.

Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010)

In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos.  While the Court accepted that the claimant had been treated unfairly, it was not satisfied her trial and conviction in Laos amounted to a ‘flagrant denial of justice’ such as to justify her release from prison.

A W Khan v United Kingdom [2009] ECHR 27(12 January 2010)

The European Court of Human Rights has held that the deportation of a convicted heroin trafficker, who had not re-offended since release from prison and had developed strong ties with a country based on long-term residency, family and children, constituted a violation of the applicant’s right to private and family life.

R v Horncastle & Ors [2009] UKSC 14 (9 December 2009)

The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from witnesses who were unable to attend court either because they were dead or out of fear for their safety.  The Court held that where the evidence before a court is that of an identified but absent witness, there is no reason for imposing an absolute rule that such evidence should be excluded where it is the 'sole or decisive evidence' against a defendant, provided appropriate counter-balancing measures had been adhered to.

Omojudi v United Kingdom [2009] ECHR 1820/08 (24 November 2009)

The European Court of Human Rights has held that the deportation of Steven Omojudi from the United Kingdom to Nigeria was an unjustifiable interference with Omojudi’s right to respect for private and family life under art 8 of the European Convention on Human Rights.  Omojudi had lived in the UK for 26 years.  During this time, he had been convicted of two serious criminal offences.  In reaching its decision, the Court emphasised the long period during which Omojudi had not committed any offences and the significant disruption to his family life in the UK.

Russell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009)

On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that the person understands his or her legal rights.  His Honour considered the principles of natural justice under common law and also the right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2006.  Justice Kaye found that the Victorian Civil and Administrative Tribunal had not breached the principles of natural justice and therefore had not denied rights under s 24 of the Charter. 

Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009)

Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

In this case, the question arose as to whether a particular application in relation to an Extended Supervision Order (‘ESO’) under the Serious Sexual Offenders Monitoring Act 2005 (Vic) (‘SOM Act’) was a ‘proceeding’ and, if so, the relevant date of its commencement.

Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009)

On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding.  In the decision, Vickery J noted that the common law enshrines a right to commence legal proceedings and that this right is re-inforced by of s 24(1) of the Victorian Charter.  A dispute resolution clause in a commercial contract which aimed to limit parties’ access to the court was held inconsistent with this right and therefore invalid. 

Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009)

In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, has found that a provision of the Major Crime (Investigative Powers) Act 2004 (Vic), which provides for the abrogation of the privilege against self-incrimination, must be interpreted as extending derivative use immunity to a person, so as to be compatible with human rights.