Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011)
The England and Wales High Court recently concluded that action taken by the police to contain and then later disperse G20 protestors constituted an unlawful use of force, in the circumstances.
Read MoreGoverning Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011)
In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.
Read MoreCondliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (7 April 2011)
The High Court of England and Wales has held that a public health authority did not breach a patient’s right to a private and family life by excluding consideration of non-clinical social factors in deciding not to fund surgery for that patient.
Read MoreRahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011)
The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of community advice centres was defective, because the council failed to give due regard to its equality duties.v
Read MoreS v S (CCT 63/10) [2011] ZACC 7 (29 March 2011)
This case considered the degree to which a court is required to take into consideration the best interests of the child when determining the appropriate sentence to impose upon a primary caregiver. In particular, it considered the circumstances when a person will be considered to be the primary caregiver of a child, and the impact the person’s imprisonment will have on the child.
Read MoreFaulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2011] EWCA Civ 349 (29 March 2011)
The Court of Appeal of England and Wales decided Mr Daniel Faulkner was entitled to damages pursuant to section 8(1) of the Human Rights Act 1998 (UK) (HRA) in the sum of £10,000 as a result of being unlawfully detained in breach of Article 5(4) of the European Convention on Human Rights (‘the Convention’).
Read MoreGiuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011)
The Grand Chamber of the European Court found no violation of the European Convention of Human Rights arose out of the killing of a demonstrator by Italian armed forces during the G8 summitNotably, however, there were divergent views regarding the State's obligations (both substantive and procedural) to protect life, including in relation to making specific provisions governing the use of firearms during police operations, issuing non-lethal weapons, and whether there is a higher level of responsibility where large-scale, high risk demonstrations are planned.
Read MoreLautsi & Ors v Italy [2011] ECHR Application No 30814/06 (18 March 2011)
In this case, the Grand Chamber of the European Court of Human Rights held that crucifixes in Italian State schools do not infringe the art 9 right to religious freedom. The case originated in a dispute between a school and a parent and escalated into an international issue with almost all European countries intervening in the final hearing.
Read MoreThe Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet [2011] EWHC 585 (17 March 2011)
In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular orders and injunctions would be a disproportionate interference to various protestors' rights under arts 10 and 11 of the European Convention on Human Rights. Having closely considered the particular facts and circumstances of the various protestors, the Court concluded that the orders and injunctions were not disproportionate.
Read MoreHugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011)
The Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. Through a joint judgment by Moseneke DCJ and Cameron J, the majority of the Court gave Parliament 18 months to amend the legislation.
Read MoreDaniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011)
The Namibian High Court recently considered whether mandatory minimum sentences for stock theft under the Stock Theft Act violated the prohibition of cruel, inhuman or degrading punishment under the Namibian Constitution. The constitutionality of the Act was challenged by two men who were sentenced for a combined 50 years for the theft of one cow and nine goats.
Read MoreHogan v Hinch [2011] HCA 4 (10 March 2011)
The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be 'reasonably necessary' to respect the rights and reputation of other persons.
Read MoreWithler v Canada (Attorney General) [2011] SCC 12 (4 March 2011)
In response to a class action brought on behalf of widows receiving spousal death benefits, the Supreme Court of Canada (SCC) has reviewed Canadian jurisprudence regarding the violation of the right to substantive equality under s 15(1) of the Canadian Charter of Rights and Freedoms and revisited the “comparator test” in the context of a challenge to a legislative employee benefits scheme. The decision could be said to represent the final nail in the coffin of the “mirror comparator” test and confirms that contextual, rather than formalistic, analysis is required when considering questions of substantive inequality.
Read MoreDe Simone v Bevnol Constructions & Developments Pty Ltd & Ors [2011] VSCA 54 (3 March 2011)
A recent decision of the Court of Appeal has held that it is highly unlikely that the production of documents pursuant to a summons would ordinarily constitute an unlawful or arbitrary interference with a person’s right to privacy pursuant to s 13(a) of the Charter.
Read MoreP & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011)
This case in the England and Wales Court of Appeal considered what constitutes a deprivation of liberty and the limitations on the right to liberty. It involves consideration of whether the care arrangements for two persons with mental disability resulted in the deprivation of their liberty.
Read MoreJohns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011)
The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might impact upon the rights of the child. The applicants, who were prospective foster carers, were found to have exhibited antipathy or disapproval of same-sex relationships or of people who identified as homosexual.
Read MoreBB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011)
This case considered procedural requirements in the hearing of bail applications made by persons detained on undisclosed national security grounds. The England and Wales High Court concluded that, as a minimum requirement in such applications, government authorities must disclose to the detainees the evidence it used in deciding to deport them. This is so despite the fact that the government can legally detain people pending their deportation on the basis of undisclosed material.
Read MoreAhmed & Anor v The Queen [2011] EWCA Crim 184 (25 February 2011)
The applicant claimed that his prosecution for terrorism offences would amount to an abuse of process, on the grounds that British authorities were complicit in his torture committed abroad by Pakistani authorities. The UK Court of Appeal refused to extend the law of abuse of process to situations where the defendant’s torture does not impact on the trial. The prosecution will only be an abuse of process if the product of torture (for example, a statement) is being used in court to make a case against the defendant.
Read MoreHounslow London Borough Council v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8 (23 February 2011)
In Manchester City Council v Pinnock [2010] UKSC 45 (Pinnock) the UK Supreme Court held that a person at risk of eviction from their home by a local authority should be able to question the proportionality of eviction (although there is no right under domestic law to remain in the property); and an independent tribunal should be able to assess proportionality with reference to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).
Read MoreSecretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011)
The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four Aboriginal children to the care of their maternal grandmother at a submissions contest hearing in which no formal evidence was given. The Supreme Court further held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.
Read MoreAbdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin) (16 February 2011)
This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order.
Read MoreR v Ahmad, 2011 SCC 6 (10 February 2011)
The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly interpreted, the statutory scheme was sufficiently flexible to preserve the full authority of the judge presiding over the criminal trial to do justice between the parties and preserve the rights of the defendant to a fair trial.
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ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011)
The Supreme Court of the United Kingdom has held that the 'best interests of the child' should be the first consideration where children are affected by the decision to remove or deport one or both of their parents. While the best interests of the child can be cumulatively outweighed by other factors in determining proportionality, no consideration is inherently more significant than the best interests of the child.
Read MoreCanadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011)
The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), but the protection does not apply in every circumstance. The use of an exhibit tendered in evidence at trial is, subject to any applicable statutory provision, to be determined by the trial judge in accordance with an analysis of the competing factors at stake, including trial fairness and the administration of justice.
Read MoreCaserta v Director of Public Transport [2011] VCAT 98 (27 January 2011)
The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the Director’s decision on the basis it was not satisfied that the applicant had met the application requirements under the relevant Act.
Read MoreAydin v Germany [2011] ECHR 141 (27 January 2011)
The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.
Read MoreKupczak v Poland [2011] ECHR 127 (25 January 2011)
Mr Edward Kupczak (the ‘applicant’) was held in detention in Poland awaiting trial for offences related to organised crime. The Applicant was severely disabled in a car accident six years prior to his detention, and suffered severe pain daily. He had been living with a morphine pump installed in his body to help manage his pain. His pump failed shortly after he was detained. The Applicant remained in detention despite making appeals for two and a half years. The Applicant was released from pre-trial detention in 2008 and was then able to have the morphine pump replaced.
The European Court of Human Rights found that through his detention, his lack of access to appropriate pain relief, and the Polish courts’ failure to acknowledge the break-down of his morphine pump, the Applicant had been subjected to inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights ( ‘ECHR’).
Read MoreDonaldson v the United Kingdom - 56975/09 [2011] ECHR 210 (25 January 2011)
A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside of their prison cells was inadmissible.
Read MoreMvumvu v Minister for Transport [2011] ZACC 1 (17 January 2011)
The South African Constitutional Court struck down road accident compensation legislation because it is indirectly discriminatory on the ground of race. However, due to evidence of serious budgetary implications, the Court suspended the order of invalidity for 18 months to enable Parliament to cure the defect.
Read MoreTTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011)
The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest relative”, his brother, objected to an application for detention and treatment being made under the Mental Health Act 1983 (UK) (‘MHA’).
Read MoreMorales, R (on the application of) v The Parole Board & Ors [2011] EWHC 28 (Admin) (14 January 2011)
In this case the High Court of England and Wales decided that the actions of the Parole Board, and the Secretary of State for Justice (‘Secretary of State’) caused an ‘undue delay’ in allowing Mr Jan Morales to test the legality of his detention before a court. Accordingly, the High Court held that there had been an infringement of Mr Morales’ rights under Article 5 (4) of the European Convention of Human Rights (‘ECHR’).
Read MoreSuppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)
The High Court of England and Wales decided that two families who had sought asylum in the United Kingdom were detained unlawfully by the Secretary of State for the Home Department (Defendant) because the Defendant failed to have regard to its duty to safeguard and promote the welfare of children.
Read MoreIn the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011)
In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner Case), held that that a marriage commissioner’s refusal to solemnize same-sex marriage on the basis of religious beliefs is unlawful. The Court held that two proposed amendments to the Marriage Act 1995 would offend the Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate the equality rights of gay and lesbian individuals’.
Read MoreLegal Services Commission v Humberstone, R (On the application of) [2010] EWCA Civ 1479 (21 December 2010)
The England and Wales Court of Appeal has held that the state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life. This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.
Read MoreDirector of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)
A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a Notice to Vacate (‘NTV’) and in making an application for possession. Member Dea assessed the scope of the rights to privacy and to the protection of families and children and she concluded that neither of these rights had been engaged. She held that even if such rights had been engaged, the Director had given proper consideration to, and had acted compatibly with, them in seeking to evict the respondent. The application for possession was upheld.
Read MoreRowe v Electoral Commissioner [2010] HCA 46 (15 December 2010)
The case, which was heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. The Amendment Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ. The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity.
Read MoreAl Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010)
This case concerned the death in custody of Anthony Daniel, a drug smuggler and user. Mr Daniel's widow and father brought a claim under arts 2 and 3 of the European Convention on Human Rights against Her Majesty's Revenue and Customs, the UK's customs and tax department. The England and Wales Court of Appeal held that the 'criminality' defence – which makes a claim brought to secure or enforce the benefit of a criminal transaction non-justiciable – does not operate to prevent human rights claims under the European Convention.
Read MoreStellato v The Ministry of Justice [2010] EWCA Civ 1435 (14 December 2010)
The England and Wales Court of Appeal recently considered the application of art 5.1(b) of the European Convention on Human Rights (the right to liberty) to the detention of a person released on license and subsequently on bail, who refused to comply with the license and bail conditions imposed on him.
Read MoreEWCA Civ 1434 (14 December 2010)
The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system. In Faulkner, the Court concluded that where a prisoner’s parole is unjustifiably delayed, they may be entitled to compensation under art 5(4) of the European Convention on Human Rights. The decision may have ramifications for Victorian prisoners whose parole is ‘unjustifiably delayed’.
Read MoreBennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)
An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force. In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems. Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed. This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreWebster v R [2010] EWCA Crim 2819 (01 December 2010)
The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:
Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010)
The European Court of Human Rights recently considered the United Kingdom's continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK. The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case. In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.
Read MoreIn the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010)
The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent with the right to liberty under s 18 of the ACT Human Rights Act 2004 (‘HR Act’). Section 9C of Bail Act requires those accused of murder, certain drug offences and ancillary offences, to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken. This was found to be inconsistent with the requirement in s 18 of the HR Act that a person awaiting trial not be detained in custody as a ‘general rule’.
Consistent with the dialogue model of the ACT HR Act, the law declared incompatible continues to operate in its original form, and power rests in the Legislative Assembly alone to amend it.
Read MoreDirector of Housing v TK [2010] VCAT 1839 (16 November 2010)
A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants.
Read MoreR v AM [2010] ACTSC 149 (15 November 2010)
The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences. An applicant sought to argue that her consciousness beliefs should provide her a defence to otherwise criminal conduct, and if not, that the Court should issue a declaration of incompatibility on the basis the relevant offence was inconsistent with the HR Act.
Read MoreDPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)
The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic). The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.
Read MoreDPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010)
The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home that had been used in connection with a criminal offence.
The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission both intervened to make submissions on the Charter issues.
Read MoreDuring the coronial inquest into the fatal shooting of a teenager by the Victoria Police, the Victorian State Coroner considered an application by the Chief Commissioner of Police (‘CCP’) for an order prohibiting the publication of certain documents. The application was made pursuant to s 73(2)(b) of the Coroners Act 2008, which states that a coroner must order that a report about any documents, material or evidence provided to the coroner as part of an inquest not be published if the coroner reasonably believes that the publication would be contrary to 'the public interest'. In deciding whether or not to grant the application, the Coroner considered how s 73(2)(b) ought to be approached in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the impact of the Charter in weighing up what is in the 'public interest.'
Read MoreWells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)
The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 and 25) were breached. In dismissing the appeal, the Court of Appeal commented that it would rarely entertain Charter arguments in interlocutory appeals, due to their complexity and the prospect of causing delays in criminal trials.
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