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Select International and Comparative Caselaw
The use of restraints against young people in Secure Training Centres The Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012) Summary This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training [...]
Journalistic access to prisons and the right to freedom of expression and information British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012) Summary In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently [...]
What amounts to degrading treatment in prison? Grant v Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011) Summary In Grant v Ministry of Justice, the High Court of England and Wales dismissed claims by two prisoners that the prison sanitation regime at HMP Albany breached their right under article 3 of the European [...]
Freedom of expression curtailed for ‘unacceptable behaviour’ Naik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011) Summary The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the [...]
Grand Chamber considers whether testimony of absent witness violates fair trial right Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011) Summary The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the ‘sole or [...]
Court rules that UK must act to secure release of prisoner from notorious US prison Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor [2011] EWCA Civ 1540 (14 December 2011) Summary On 14 December 2011, the England and Wles Court of Appeal overturned a decision of the High Court and issued [...]
Investigating potential breaches of the right to life: ‘Unified’ investigation processes not necessary Pearson v United Kingdom [2011] ECHR 2319 (13 December 2011) Summary The European Court of Human Rights has clarified the scope of a State party’s obligation to investigate a death in circumstances involving a potential breach of the right to life. In [...]
Obligation to consider alternatives to eviction into homelessness Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Limited and Others (CCT 25/11) [2011] ZACC 35 (7 December 2011) Summary In this case, if evicted, approximately 170 families would be made homeless. The South African Constitutional Court unanimously held that, before making [...]
Preventive detention of G8 protesters a violation of the right to liberty and peaceful assembly Schwabe and M.G. v Germany – 8080/08 [2011] ECHR 1986 (1 December 2011) Summary The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 [...]
City has constitutional obligation to provide emergency accommodation to vulnerable persons evicted by private landlord City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011) Summary The South African Constitutional Court has held that [...]
Admissibility of unsolicited statements made in a police interview Jude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice [...]
Legal advice not essential before a detainee can be taken to have validly waived the right to legal advice McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to [...]
Canadian Court says criminalisation of polygamy is a valid limitation on the right to freedom and liberty Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011) Summary This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of [...]
Investigations of deaths implicating the state must be comprehensive and fully independent R, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011) Summary The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context [...]
Occupy Toronto and limitations on the right to protest Batty v City of Toronto [2011] ONSC 6862 (21 November 2011) Summary In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated [...]
Economic and social rights are fundamental, justiciable and enforceable Osman v Minister of State for Provincial Administration & Internal Security and Ors eKLR [2011] (16 November 2011) Summary The High Court of Kenya has held that the forced eviction of 1,122 people was a violation of the right to adequate housing enshrined in the Kenyan [...]
Warrantless search of home by police justified exclusion of evidence from criminal proceedings R v Larson, 2011 BCCA 454 (10 November 2011) Summary In this case, the Court of Appeal for British Columbia overturned Mr Larson’s conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c [...]
When will restrictions on autonomy amount to a deprivation of liberty? Cheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011) Summary The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the [...]
Sterilisation of woman amounted to breach of respect for private life and prohibition against inhuman or degrading treatment V.C. v Slovakia [2011] ECHR 1888 (8 November 2011) Summary In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the [...]
Denial of access to therapeutic abortion and essential health care violated Convention on Elimination of Discrimination against Women L.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011) Summary The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion [...]
States have margin of appreciation to regulate access to reproductive health care S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011) Summary The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm [...]
Proceeds of crime and the presumption of innocence Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011) Summary Approximately £2 million worth of property was confiscated from the appellants, on the basis that it was the fruit of drug trafficking, money laundering and tax evasion. Under Article 6(2) of the [...]
Supreme Court of British Columbia refuses to admit evidence obtained in breach of Charter rights R v Nakamura, 2011 BCSC 1443 (26 October 2011) Summary This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused [...]
Systemic overcrowding in prisons may amount to inhuman and degrading treatment Mandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011) Summary In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic [...]
Detention of person with mental illness was arbitrary and unlawful Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011) Summary The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients [...]
Government guidance for intelligent officers should recognise that ‘hooding’ will normally constitute torture or ill-treatment Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) (3 October 2011) Summary The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni [...]
People detained pending deportation have the right to timely and adequate reasons for arrest in a language they can understand Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011) Summary The High Court of England and Wales has upheld the right of people under arrest to be given [...]
Combating drug use while respecting Charter rights Canada (Attorney-General) v PHS Community Services Society, 2011 SCC 44 (30 September 2011) Summary The Supreme Court of Canada has held that the failure of the Minister of Health to grant an exemption to allow a safe injecting facility to operate notwithstanding federal anti-drug laws violated the right [...]
United Kingdom justified in differentiating between social housing applicants based on conditional immigration status Bah v United Kingdom [2011] ECHR 1448 (27 September 2011) Summary The European Court of Human Rights has held that a person’s immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, [...]
Solicitor-client privilege: sacred principle or conduit for crime? Federation of Law Societies of Canada v Canada (Attorney General), 2011 BCSC 1270 (27 September 2011) Summary In the context of international pressure on states to combat anti-money laundering and terrorism financing, the Supreme Court of British Columbia has held that limitations on solicitor-client privilege imposed by [...]
European Court of Human Rights rules on the right to freedom of expression in the context of employment Palomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011) Summary In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade [...]
Rioters’ rights: Police obligations under the European Convention of Human Rights during protests and demonstrations Castle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011) Summary The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last [...]
Treatment and conditions of detention for women must be gender-sensitive, says CEDAW Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (2011) Summary The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention [...]
There’s no place like home: The case of Mr Nystrom Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011) On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom. In this landmark decision the Committee found that Australia had violated [...]
Failure to protect woman effectively against domestic violence violated Convention on Elimination of Discrimination against Women V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011) Summary The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the [...]
Treatment of young rape survivor violated ICCPR L.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011) The Human Rights Committee recently found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights. Facts L.N.P., an [...]
Canadian Appeal Court considers scope of the right to legal counsel R v JWC, 2011 ONCA 550 (10 August 2011) Summary This is an unusual criminal law case in which the only evidence against the defendant, JWC, was a statement he made to police in which he confessed to numerous sexual assaults of a number [...]
Failure to prevent avoidable maternal death violates rights to life, health and non-discrimination Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) Summary The UN Committee on the Elimination of Discrimination against Women has found that Brazil’s failure to prevent the avoidable maternal death of Alyne da Silva, a 28-year-old Brazilian [...]
UK’s detention of individual suffering mental illness amounted to torture and ill-treatment The Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011) Summary The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to [...]
State breached positive obligations to safeguard and protect the right to respect for private life by failing to prevent dog attack Georgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011) Summary In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of [...]
Restrictions on head dress an impermissible violation of the right to freedom of religion Singh v France, UN Doc CCPR/C/D/102/18767/2009 (22 July 2011) Summary The UN Human Rights Committee recently decided that a French regulation requiring persons to appear bare headed in identity photographs used for residency permits constitutes an impermissible limitation on the applicant’s [...]
Detention for mental health purposes must be subject to strict safeguards and review LM v Latvia [2011] ECHR (Application No 26000/02, 19 July 2011) Summary In LM v Latvia, the European Court of Human Rights affirmed the importance of ensuring that domestic law provides adequate legal protections to persons with mental illness who are involuntarily [...]
State bears responsibility for deaths in custody Zhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011) Summary In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State [...]
Balancing the right to a fair and public hearing with national security Home Office v Tariq [2011] UKSC 35 (13 July 2011) Summary In this case, the United Kingdom Supreme Court considered the nature and scope of the right to a fair hearing and, in particular, the circumstances in which the nature of allegations against [...]
Human rights obligations can travel: The extraterritoriality of human rights and the Iraq War Al-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011) Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011) Summary The European Court of Human Rights (the Court) recently decided two applications brought against the United Kingdom under Article [...]
Human rights obligations can travel: The extraterritoriality of human rights and the Iraq War Al-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011) Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011) Summary The European Court of Human Rights (the Court) recently decided two applications brought against the United Kingdom under Article [...]
Human rights at what cost? Balancing human dignity and economic constraints R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 (6 July 2011) Summary The UK Supreme Court has held that the failure to provide an elderly woman with night-time care assistance to help her use the toilet, [...]
Right to fair trial without unreasonable delay R v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011) Summary In R v Kara Lesley Mills [2011] ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances [...]
Right to legal representation in disciplinary proceedings R (on the application of G) v The Governors of X School [2011] UKSC 30 (29 June 2011) Summary The UK Supreme Court has held that where one set of proceedings determines an individual’s civil rights or obligations, they may have procedural rights under article 6 of the [...]
Deportation to situations of generalised violence may breach human rights Sufi and Elmi v The United Kingdom [2011] ECHR 1045 (28 June 2011) Summary The European Court of Human Rights (the Court) has found that the return of two Somali nationals to Mogadishu, Somalia would amount to inhuman and degrading treatment in breach of article [...]
State bears onus to explain injuries in custody Gubacsi v Hungary [2011] ECHR 1044 (28 June 2011) Summary In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may amount to inhuman and degrading treatment in breach of article 3 of the [...]
Shock jocks beware: Restrictions on broadcasting offensive material not a disproportionate interference with the right to freedom of expression R (on the application of) v The Office of Communications [2011] EWCA Civ 692 (17 June 2011) Summary This case concerns an appeal against the Divisional Court’s finding that a radio presenter’s right to freedom of [...]
The right to family life and liberty of persons affected by disability London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP) (09 June 2011) Summary In this case, a 21 year old man with autism and severe learning disabilities who was institutionalised, rather than being permitted to return to his home under [...]
No doubt over lawfulness of abortions Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011) Summary On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in [...]
European Court holds that failure to provide access to reproductive healthcare may violate prohibition against torture and ill-treatment R.R. v Poland [2011] ECHR 828 (26 May 2011) Summary In this case the European Court of Human Rights (ECHR) delivered judgment in favour of an applicant, Ms R.R., who brought a case against Poland for a [...]
South African Constitutional Court considers the right of appeal to or review by a higher court Qhinga and Others v S (CCT 50/10) [2011] ZACC 18 (25 May 2011) Summary The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a [...]
Supreme Court of the United States upholds ‘structural injunction’ requiring California to reduce its prison population Brown, Governor of California et al v Plata et al, 563 US _____ (2011) (23 May 2011) Summary On 23 May 2011 the Supreme Court of the United States upheld a lower court’s decision finding that the conditions in [...]
Indefinite detention of non-convicted persons’ DNA violates right to privacy GC v The Commissioner of the Police of the Metropolis [2011] UKSC 21 (18 May 2011) Summary On 18 May 2011 the Supreme Court of the United Kingdom handed down a judgment which considered whether a provision in the Police and Criminal Evidence Act 1984 (PACE) [...]
Balancing the right to privacy and freedom of expression: What is the public interest in private affairs? CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011) Summary In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who [...]
Formula One boss’s privacy breached, but limited rights to seek an injunction Mosley v the United Kingdom (48009/08) (10 May 2011) Summary The European Court of Human Rights has ruled against former Formula One boss Max Mosley in the latest round of the well-publicised litigation he initiated in 2008 after the UK newspaper News of [...]
Does the State have a positive obligation to provide housing? TG, R (on the application of) v London Borough of Lambeth [2011] EWCA Civ 526 (6 May 2011) Summary The UK Court of Appeal has considered whether a failure to provide housing and other supports to a vulnerable young person breaches their positive obligation to [...]
NZ Bill of Rights requires courts to give legislation the meaning which ‘least restricts’ human rights Valerie Morse v The Police [2010] NZSC 45 (6 May 2011) Summary The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) [...]
Restricting access to legal abortion may amount to torture or other cruel, inhuman or degrading treatment under the ICCPR LMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011) Summary In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent [...]
Police use of force to control demonstrators only permissible where there are no other means whatsoever to prevent breach of the peace Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011) Summary The England and Wales High Court recently concluded that action taken by [...]
South African Constitutional Court Considers the Nature and Scope of the Right to Education Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011) Summary In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the [...]
What is the Scope of a Public Authority’s Positive Duty to Respect Privacy and Family Life? Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (7 April 2011) Summary The High Court of England and Wales has held that a public health authority did not breach a patient’s [...]
Council failed to Give “Due Regard” to Equality Duties in Defunding a Community Service Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011) Summary The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of [...]
Consideration of the Rights of the Child in Sentencing of a Parent S v S (CCT 63/10) [2011] ZACC 7 (29 March 2011) Summary 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 [...]
tate has a Positive Obligation to Protect Life and Ensure Effective and Independent Investigation of Police-Related Deaths Giuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011) Summary 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 [...]
European Court of Human Rights Rules that Crucifixes in State Schools do not Violate Religious Freedom Lautsi & Ors v Italy [2011] ECHR Application No 30814/06 (18 March 2011) Summary 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 [...]
Limitations on the Rights to Freedom of Expression and Assembly The Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet [2011] EWHC 585 (17 March 2011) Summary In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular [...]
State’s Obligation to Establish an Independent Anti-Corruption Body Hugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011) Summary 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 [...]
Mandatory Minimum Sentencing Amounts to Cruel, Inhuman and Degrading Treatment Daniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011) Summary 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 [...]
Age Discrimination Permissible for Widows’ Death Benefits Withler v Canada (Attorney General) [2011] SCC 12 (4 March 2011) Summary 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 [...]
Care Arrangements and the Right to Liberty: When will Restrictions on a Person with Disability Amount to a Deprivation of the Right to Liberty? P & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011) Summary This case in the England and Wales Court of Appeal considered what constitutes a deprivation of [...]
Religious Expression May be Limited to Protect the Rights of Child Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011) Summary The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might [...]
Counter Terrorism and the Use of Undisclosed Evidence BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011) Summary 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 [...]
When Torture Abroad Will Prevent Prosecution of a Terrorist Defendant Ahmed & Anor v The Queen [2011] EWCA Crim 184 (25 February 2011) Summary 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 [...]
Courts Should Consider the Proportionality of Evictions from Public Housing – The Sequel to Pinnock Hounslow 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 [...]
Right to ‘Polite’ Protest Abdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin) (16 February 2011) Summary This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order. Facts This case involved an appeal in the High Court of England [...]
Sufficient Flexibility to Preserve Right to Fair Trail R v Ahmad, 2011 SCC 6 (10 February 2011) Summary 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 [...]
Best Interests of Child Paramount in Decisions to Deport Parents ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) Summary 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 [...]
Right to Free Expression and Open Justice may Permit Broadcasting of Evidence Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011) Summary 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 [...]
Does Criminalisation of Support for an ‘Illegal’ Organisation Violate the Right to Free Expression? Aydin v Germany [2011] ECHR 141 (27 January 2011) Summary 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 [...]
Lack of Adequate Healthcare in Prison is Inhumane and Degrading Kupczak v Poland [2011] ECHR 127 (25 January 2011) Summary 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 [...]
Shamrocks and Poppies Allowed, but Easter Lilies Likely to Aggravate Donaldson v the United Kingdom – 56975/09 [2011] ECHR 210 (25 January 2011) Summary 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 [...]
Legislation which Imposes Burden on Public Transport Users Indirectly Discriminates on Grounds of Race and Poverty Mvumvu v Minister for Transport [2011] ZACC 1 (17 January 2011) Summary 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 [...]
Mental Health and the Right to Liberty – Unlawful Detention in Mental Health Facility and the Right to Compensation TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011) Summary The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest [...]
Undue Delay in Parole Hearing Amounts to Arbitrary Detention Morales, R (on the application of) v The Parole Board & Ors [2011] EWHC 28 (Admin) (14 January 2011) Summary 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 [...]
School Exclusion and the Right to Education Ali v United Kingdom – 40385/06 [2011] ECHR 17 (11 January 2011) The European Court of Human Rights has held that the exclusion of a student from school during the investigation of a criminal offence, and subsequent removal of the student from the school’s roll, did not constitute [...]
Detention of Children in Immigration Facilities a Breach of Human Rights Suppiah & 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 [...]
‘Freedom of Religion is Not Absolute’: Same-Sex Marriage and Religious Beliefs and Convictions In 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 [...]
Right to Life: When is the State Obliged to Fund Legal Representation at Coronial Inquests? Legal 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 [...]
‘Human Rights are Not Just for the Virtuous’: Will Criminal Conduct Prevent a Claim for Breach of Human Rights? Al 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 [...]
UK Court of Appeal Considers Payment of Damages for Wrongful Imprisonment Stellato 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 [...]
Right to Liberty and Review of Detention Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2010] EWCA 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 [...]
Permissible Use of Force and the Investigation of Police-Related Deaths Bennett 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 [...]
Human Rights Interpretation and Reverse Onus Provisions: Is a Human Rights-Compatible Interpretation ‘Possible’?” Webster 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: the interpretation of the right to a ‘Fair Hearing’ under s 24 of the [...]
Enforcing the Right to Vote: UK Government Given Deadline to Reinstate Prisoners’ Right to Vote 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 [...]
Is a Presumption Against Bail Consistent with Human Rights? ACT Supreme Court Rules on Human Rights and the Interpretation of Legislation In 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 [...]
Does Freedom of Conscience Excuse Otherwise Criminal Behaviour? R 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 [...]
Courts Should Consider the Reasonableness and Proportionality of Evictions from Public Housing Manchester City Council v Pinnock [2010] UKSC 45 (3 November 2010) In this decision the UK Supreme Court was required to decide whether art 8 of the European Convention on Human Rights requires a court to consider the reasonableness and proportionality of applications for [...]
Ill-Treatment in Custody: Human Rights Committee Considers Prisoners’ Rights in Detention McCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010) The Human Rights Committee has found that South Africa violated a prisoner’s rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected [...]
Disability Discrimination in Access to Education British Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010) Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education. He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely [...]
When will Eviction from Social Housing Breach Human Rights? Canberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010) The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or [...]
Right to Lawyer Pre-Questioning: Admissions by Detained Suspect with Legal Representation are Incompatible with Right to Fair Trial Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43 (26 October 2010) The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal [...]
Protection of Elderly Persons and People with Disability McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010) The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use [...]
Right to a Fair Hearing and Disciplinary Proceedings in Prison King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010) The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights. The [...]
Balancing the Right to a Fair Hearing and the Right to Religion: Canadian Court Considers Wearing of Veil in Criminal Proceeding R v NS, 2010 ONCA 670 (13 October 2010) The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding [...]
Limitation Periods and the Right of Access to the Courts Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010) The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the [...]
The Welfare of Children must be ‘Primary Consideration’ in Decisions Regarding Immigration Detention of Parents MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010) The England and Wales High Court has held that the immigration detention of a Jamaican woman with [...]
Sex Workers Must not be Forced to Choose between their Right to Liberty and Right to Security of Person Bedford v Canada, 2010 ONSC 4264 (28 September 2010) In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of [...]
Indian Supreme Court Considers Right to Liberty and Safeguards against Arbitrary Detention Pebam Ningol Mikoi Devi v State of Manipur & Ors [2010] INSC 782 (27 September 2010) The Indian Supreme Court has consider the right to liberty and safeguards against arbitrary detention, including the need for sufficient justification for any deprivation of liberty and [...]
European Court Considers Rights to Privacy and the Home and Procedural Safeguards against Eviction Kay & Ors v United Kingdom [2010] ECHR 1322 (21 September 2010) This decision concerned the right to respect for home under art 8 of the European Convention of Human Rights. The European Court of Human Rights decided that the decision [...]
Racial Vilification and the Balancing of Freedom of Expression with Freedom from Discrimination Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010) The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of [...]
Protection of Journalistic Sources: Compulsion to Disclose Information without Review by Independent Body a Breach of Right to Freedom of Expression Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010) Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and [...]
The Right to a Fair Hearing within a Reasonable Time McFarlane v Ireland [2010] ECHR 1272 (10 September 2010) In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable [...]
Canadian Court Considers Content of Right to Equality and Role of Appellate Courts in Discrimination Matters Ayangma v French School Board, 2010 PECA 16 (9 September 2010) The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of [...]
Prisoners’ Right to Privacy: Claim for Access to Family Photographs Rejected Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010) The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s [...]
States Have Obligation to Prevent and Address Gender-Based Stereotyping Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to [...]
Adrakhim Usaev v Russian Federation, UN Doc CCPR/C/99/D/1577/2007 (20 August 2010) The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman [...]
Human Rights Committee Considers Necessity for Independent, Impartial Investigations in Cases of Alleged Breaches of the ICCPR Olimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003 A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, [...]
Investigation of Death of Human Rights Defender and the Need for Independent Investigation and Expeditious Prosecution Evangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010) The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights [...]
Discrimination on Ground of Nationality Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010) The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law. Facts [...]
Protecting Marriage or Legislating Morality? Same-Sex Marriage Equality under the US Constitution Perry v Schwarzenegger, Case No. C 09-2292 VRW (US District Court for the Northern District of California, 4 August 2010) The US District Court has held that a prohibition against same-sex marriage violates the US constitutional requirements of ‘due process’ and equal ‘protection’. [...]
What Level of Inquiry and Analysis is Required to Determine the Reasonableness of a Police Search? R v Cornell, 2010 SCC 31 (30 July 2010) The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, [...]
Control Orders and the Deprivation of Liberty AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be [...]
Who is a ‘Victim’ with Standing to Bring a Complaint under the ICCPR? Fatima Andersen v Denmark, UN Doc CCPR/C/99/D/1868/2009 (26 July 2010) The UN Human Rights Committee has held that to be a ‘victim’ under the International Covenant on Civil and Political Rights requires the identification of specific consequences of the conduct that forms [...]
When Will Damages be a Just and Appropriate Remedy for Breach of Human Rights? City of Vancouver v Ward 2010 SCC 27 (23 July 2010) The Supreme Court of Canada has handed down a significant judgment on the availability of damages for a breach of human rights under the Canadian Charter of Rights and Freedom. [...]
Limitations on the Right to Peaceful Assembly and Protest Mayor of London (On behalf of the Greater London Authority) v Hall & Ors [2010] EWCA Civ 817 (16 July 2010) The England and Wales Court of Appeal upheld a High Court decision which held that the Mayor of London is entitled to seek an injunction [...]
Right to Equality: Recognising and Prohibiting Discrimination beyond ‘Innate’ or ‘Inherent’ Characteristics Clift v United Kingdom [2010] ECHR 1106 (13 July 2010) In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a [...]
Extra-territorial Application of the Human Rights Act Smith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010) The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed [...]
Torture and the Transfer of Prisoners Evans, R (on the application of) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (25 June 2010) Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk [...]
Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage? Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010) Does the right to marry, and the ‘family unit’, extend to same-sex couples? The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues. Facts Under [...]
Access to Information and Freedom of Expression Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 (17 June 2010) The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in [...]
What Constitutes a Deprivation of Liberty? Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010) A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on [...]
Administrative Tribunals have Jurisdiction and Duty to Consider Human Rights Issues R v Conway, 2010 SCC 22 (11 June 2010) The Supreme Court of Canada has held that administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their [...]
Balancing the Right to Freedom of Expression and the Right to a Fair Trial Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010) Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to [...]
Freedom of Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source? R v National Post, 2010 SCC 16 (7 May 2010) In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms [...]
Right to Life Includes Right to Health and Freedom from Poverty Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors [2010] 8853/2008 and Jaitun v Janpura Maternity Home & Ors [2010] 10700/2009 (High Court of Delhi, 4 June 2010) The High Court of Delhi has issued directions in response to the systemic failures resulting in [...]
Threat of Torture during Interrogation Amounts to Inhuman Treatment Gafgen v Germany [2010] ECHR 759 (1 June 2010) The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the [...]
Protection of the Family and the Right to Determination of Status without Unreasonable Delay Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010) The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to [...]
Right to Privacy and the Interception and Surveillance of Communications Kennedy v United Kingdom [2010] ECHR 682 (18 May 2010) Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention. [...]
Conviction for War Crimes Not a Violation of the Prohibition against Punishment without Law Kononov v Latvia [2010] ECHR 667 (17 May 2010) The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human [...]
Proof of Identity Requirements and Limitations on the Right to Vote Henry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010) This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections. The Supreme Court of [...]
Freedom of Religion and Conscience Objection to Military Service Eu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010) The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, [...]
Obligation of Public Authorities to Provide Accommodation and Support to Destitute Family Birmingham City Council v Clue [2010] EWCA Civ 460 (29 April 2010) In this case, the England and Wales Court of Appeal held that the Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was [...]
Refusal to Recognise Change of Ethnic Identity is Discriminatory and Breaches Right to Respect for Private Life Ciubotaru v Moldova [2010] ECHR 638 (27 April 2010) In Ciubotaru v Moldova, the European Court of Human Rights held that, along with such aspects as name, gender, religion and sexual orientation, an individual’s ethnic identity constitutes an [...]
Imposition of Unreviewable Lifetime Reporting Requirements on Sexual Offenders a Disproportionate Intrusion on Private Life F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17 (21 April 2010) This case concerned lifetime reporting requirements for sex offenders. The Supreme Court of the United Kingdom decided that [...]
Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010) Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010) Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010) The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010) Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010) The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, [...]
Refugee Rights and Non-Refoulement: Proposed Transfer of Asylum Applicant from UK to Greece did not Breach European Convention Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin) (31 March 2010) The England and Wales High Court recently held that the proposed transfer of an [...]
Possession Orders and the Right to Privacy and the Home Salford City Council v Mullen [2010] EWCA Civ 336 (30 March 2010) In this case, the England and Wales Court of Appeal considered the impact of House of Lords decisions on the rights of tenants occupying premises under ‘introductory’ or ‘homeless’ accommodation legislation. In considering [...]
Right to Privacy and Protection of Children and Families MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010) The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and [...]
‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence Krumpholz v Austria [2010] ECHR 341 (18 March 2010) In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European [...]
Balancing the Right to Non-Discrimination and Freedom of Religious Belief in the Provision of Charitable Services Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010) The England and Wales High Court has held that it is for the Charity Commission to determine whether [...]
Right to Private Life and Protection of Children AD and OD v United Kingdom [2010] ECHR 340 (16 March 2010) The European Court of Human Rights has held that the United Kingdom breached its obligation to respect private and family life under art 8 of the European Convention on Human Rights because of errors made [...]
Protection from Cruel Treatment and the Death Penalty: UK Breaches Convention Obligations by Transferring Prisoners to Iraqi Custody Al-Sadoom and Mufdhi v United Kingdom [2010] ECHR 282 (2 March 2010) The European Court of Human Rights has held that the United Kingdom breached a number of its obligations under the European Convention on Human Rights [...]
Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy Kozak v Poland [2010] ECHR 280 (2 March 2010) The European Court of Human Rights has held that Poland violated arts 8 and 14 of the European Convention on Human Rights by denying a man living in a homosexual relationship the right to succeed to [...]
Hate Speech and the Limits of Freedom of Expression and Religious Belief Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010) The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan [...]
‘Act of State Doctrine’ does not Apply when Grave Violations of Human Rights Alleged: Court Agrees to Consider Australia’s Obligations to Citizens Abroad Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February 2010) On 25 February 2010, the Full Court of the Federal Court delivered a significant judgment that will allow the Court to [...]
Right to Public Participation Requires Reasonable Opportunity to be Heard Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010) In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate [...]
Resisting Extradition Based on the Right to Private and Family Life Norris v Government of United States of America [2010] UKSC 9 (24 February 2010) The UK Supreme Court has held that the extradition of a mentally and physically fragile 66-year-old did not contravene the right to respect for private and family life under art [...]
Right to Liberty and Security and the Police Use of Force: Excessive Use of Force Results in Reduction of Sentence R v Nasogaluak, 2010 SCC 6 (19 February 2010) The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right [...]
Torture, Executive Accountability and the Rule of Law 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 [...]
Human Rights and Foreign Policy: Supreme Court Considers Canada’s Obligation to Protect the Human Rights of Citizens Abroad Canada (Prime Minister) v Khadr, 2010 SCC 3 (29 January 2010) The Canadian Supreme Court has confirmed that Canadian officials breached Omar Khadr’s right to liberty and security of the person under s 7 of the Charter [...]
Anonymity in Court Proceedings: Balancing the Right to Privacy and Journalistic Freedom Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010) The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed [...]
Right to a Fair Hearing and Legal Representation in Disciplinary Proceedings 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 [...]
Legality of Detention Pursuant to Prisoner Transfer Agreement when Original Trial Unfair 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 [...]
Control Orders, the Right to a Fair Hearing and Compensation for Unlawful Deprivation of Liberty Secretary of State for the Home Department v AF [2010] EWHC 42 (Admin) (18 January 2010) The England and Wales High Court recently held that non-derogating control orders imposed on two UK citizens under anti-terrorism legislation were void ab initio. [...]
Safe-Injecting Rooms, Public Health and the Right to Life and Security of Person PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 (15 January 2010) The British Columbia Court of Appeal has held that the denial of access to health care services, including safe injecting facilities, for people with severe drug dependency may [...]
Serious Criminal Offences, Deportation and the Right to Family Life 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 [...]
European Court Holds that Stop and Search Powers Violate Privacy and are ‘Not in Accordance with Law’ Gillan and Quinton v United Kingdom [2009] ECHR 28 (12 January 2010) The European Court of Human Rights held that stop and search powers granted to police under the ss 44-47 of the Terrorism Act 2000 (UK) were [...]
Canadian Court Declares that Prison Conditions Violate Fundamental Human Rights Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 (11 January 2010) The Court of Queen’s Bench of Alberta has declared that conditions under which untried prisoners were held in Edmonton Remand Centre (‘ERC’) pending trial for conspiracy to traffic illicit drugs resulted in a [...]
European Court Delivers Judgment in Landmark Human Trafficking Case Rantsev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010) In a landmark judgment the European Court of Human Rights unanimously ruled that human trafficking fell within the scope of art 4 (prohibiting slavery, servitude and forced labour) of the European Convention. The Court clarified [...]
Freedom of Expression and Protection from Defamation: Striking the Right Balance Grant v Torstar Corp, 2009 SCC 61 (22 December 2009) This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The [...]
Fox Hunting and the Right to Private Life Friend and Countryside Alliance v United Kingdom [2009] ECHR 2068 (17 December 2009) In this case, the European Court of Human Rights unanimously held that a ban on fox hunting with dogs in the United Kingdom does not impinge upon the human rights enshrined in the European [...]
Balancing the Right to Religious Observance with the Right to Non-Discrimination Ladele v London Borough of Islington [2009] EWCA Civ 1357 (15 December 2009) The England and Wales Court of Appeal has confirmed that a local council can compel its employee to register civil partnerships, even though this conflicts with the employee’s religious beliefs. Facts [...]
The Right to Free Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source? Financial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009) This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources. The Court’s [...]
Freedom from Discrimination against Same-Sex Couples in Provision of Housing Rodriguez v Minister of Housing & Anor (Gibraltar) [2009] UKPC 52 (14 December 2009) The Privy Council has held that a Gibraltar Housing Allocation Committee policy to effectively grant government housing joint tenancies only to heterosexual couples was indirectly discriminatory and unconstitutional. Facts The Gibraltar [...]
Homelessness and the Right to Life, Liberty and Security Victoria (City) v Adams, 2009 BCCA 563 (9 December 2009) The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless [...]
UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses 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 [...]
Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009) In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a [...]
Balancing Freedom of Expression and the Right to Privacy BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009) In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted [...]
What is a ‘Child’? Age Determination in Asylum Applications A, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009) The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. [...]
Deportation of Non-Nationals and the Right to Respect for Family Life 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 [...]
Australia’s Obligation to Protect People from the Death Penalty Kwok v Australia, CCPR/C/97/D/1442/2005 (23 November 2009) The United Nations Human Rights Committee has found Australia to be in breach of its obligations under art 9(1) of the International Covenant on Civil and Political Rights in relation to mandatory immigration detention. The Committee ruled that ‘detention [...]
Equality and Public Authorities: Court Considers Exclusion of Female Ski Jumpers from Winter Olympics and Paralympics Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009) The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply [...]
The Prohibition of Ill-Treatment and Prevention of Destitution in a Third State EW, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2957 (Admin) (18 November 2009) In this case, the England and Wales High Court held that the extradition of an asylum seeker to a safe third country [...]
Protesting for Animal Rights and the Right to Freedom of Expression and Assembly Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty (‘SHAC’) & Ors [2009] EWHC 2716 (QB) (30 October 2009) The High Court of England and Wales refused to grant amendments to an interim injunction that would have prevented animal rights [...]
Criminal Records and the Right to Privacy R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009) The United Kingdom Supreme Court has held that decisions to release information stored in public records about an individual’s criminal convictions, including non-conviction information, will always engage art 8 [...]
No Longer Left in the Dark: Right to Municipal Services and the Procedural Fairness Obligations of Electricity Providers Joseph v City of Johanesburg [2009] ZACC 30 (9 October 2009) The Constitutional Court of South Africa has held that government-owned electricity service providers have an obligation to accord procedural fairness to tenants receiving electricity before disconnecting [...]
The Right to Water: South African Court Considers Justiciability of Socio-Economic Rights and the Roles of Courts and Parliaments Mazibuko v City of Johanesburg [2009] ZACC 29 (8 October 2009) The decision of the Constitutional Court of South Africa in Mazibuko v City of Johannesburg [2009] ZACC 28 is the first to consider the right [...]
Planning Law and the Right to a Fair Hearing Thomson v ACT Planning and Land Authority [2009] ACAT 38 (2 October 2009) On 2 October 2009, the ACT Civil and Administrative Tribunal (‘ACAT’) handed down a decision which discussed whether the limitation on ACAT’s jurisdiction to hear applications for review of planning decisions breached the [...]
Right to Liberty and Redress for Unlawful Detention Morro & Ahadizad v Australian Capital Territory [2009] ACTSC 118 (10 September 2009) Gray J of the Supreme Court of the Australian Capital Territory found that s 18(7) of the Human Rights Act 2004 (ACT) (‘ACT Act’) creates an independent statutory right to compensation for unlawful arrest [...]
Right to Respect for Private Life and Equality in Prison AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (4 September 2009) In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male [...]
The Right to Life, Use of Force and Policing Protests Giuliani and Gaggio v Italy [2009] ECHR 23458/02 (25 August 2009) The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached [...]
Governmental Obligations in Foreign Affairs and to Citizens Abroad Canada (Prime Minister) v Khadr, 2009 FCA 246 (14 August 2009) A majority of the Canadian Federal Court of Appeal recently held that Canada’s discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within [...]
Freedom of Information and Access to the Courts Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009) On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain [...]
Assisted Suicide and Human Rights: DPP Should Issue Guidelines on Exercise of Prosecutorial Discretion Purdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009) In this case, the House of Lords found that art 8 of the European Convention of Human Rights compelled the DPP to issue specific [...]
Freedom of Religion May be Limited where Effects of Limitation are Proportionate and Justifiable Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009) In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken [...]
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009) The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was [...]
Legality and the Presumption against the Abrogation of Fundamental Freedoms: Control Orders Cannot Abrogate Fundamental Rights without Express Authority Secretary of State for the Home Department v GG [2009] EWCA Civ 786 (23 July 2009) The Court of Appeal of England and Wales has considered the Home Secretary’s power to restrict a person’s liberty with [...]
Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy JF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009) The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting [...]
Rights of the Child and Minimum Sentencing Legislation Centre for Child Law v Minister for Justice and Constitutional Development and Others (with the National Institute for Crime Prevention and the Re-integration of Offenders as Amicus Curiae) [2009] ZACC 18 (15 July 2009) The Constitutional Court of South Africa upheld a decision of the High Court [...]
Freedom of Expression and Restrictions on Political Advertising Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009) The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under [...]
Freedom of Expression and the Restrictions on Advertising regarding Cruel Treatment of Animals Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009) In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with [...]
Supreme Court of Canada Balances the Right to Freedom of Religion and the Best Interests of Children AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009) On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their [...]
UK Court of Appeal Considers Definitions of ‘Public Authority’ and ‘Private Act’ London & Quadrant Housing Trust v Weaver, R (On the application of) [2009] EWCA Civ 587 (18 June 2009) A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’. The decision warrants attention for [...]
Freedom of Expression and the Right to Privacy: Reporting the Name of a Person Acquitted of Rape Attorney-General’s Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009) The House of Lords has held that, in the interests of [...]
Evictions Must be Just, Equitable and Reasonable Residents of Joe Slovo Community v Thubelisha Homes & Ors [2009] ZACC 16 (10 June 2009) The South African Constitutional Court has upheld a High Court decision to grant an application to evict approximately 20,000 residents of the informal settlement known as the Joe Slovo settlement. The eviction [...]
Right to a Fair Hearing, Control Orders and Counter-Terrorism Secretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009) Nine Lords of the House of Lords have unanimously followed the Grand Chamber of the European Court of Human Rights in Strasbourg (ECHR) in the decision of A v [...]
European Court Considers State Obligations to Prevent and Address Domestic Violence Opuz v Turkey [2009] ECHR 33401/02 (9 June 2009) In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her [...]
Unreasonable Delay in Criminal Proceedings: Supreme Court of Canada Holds 30 Month Delay Unconstitutional R v Godin, 2009 SCC 26 (CanLII) (4 June 2009) The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial. The [...]
Costs in Public Interest and Constitutional Litigation Trustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009) The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and [...]
Monitoring and Confidentiality of Prisoner Correspondence Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009) The European Court of Human Rights has held that it is a disproportionate interference with an individual’s right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant’s correspondence with [...]
Surveillance of Protests and the Right to Privacy Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009) The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual’s right to privacy under [...]
Right of Access to Court Imposes Positive Obligation on Courts to Inform Litigants of Rights and Entitlements Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009) The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining [...]
Extraterritoriality and the Right to Life Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009) The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes [...]
Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009) This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to [...]
Right to Legal Aid and a Lawyer of One’s Choice Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009) The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer. This case was the first application made under amendments to the [...]
Meaningful Review Necessary to Justify Continued Detention Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009) The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary [...]
Deportation and Non-Refoulement X v Australia, UN Doc CAT/C/42/D/324/2007 (5 May 2009) Mr X, a Palestinian born in Lebanon in 1960, was detained at the Villawood Detention Centre in Australia. He sought political asylum in Australia, however, his request was rejected and he risked forcible removal to Lebanon. He claimed, inter alia, that by deporting [...]
House of Lords considers Right to Fair Hearing and Presumption of Innocence in Context of Confiscation Orders R v Briggs-Price [2009] UKHL 19 (29 April 2009) The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to [...]
Right to Privacy and Tenancy Rights Vojnovic v Croatia, UN Doc CCPR/C/95/D/1510/2006 (28 April 2009) The Human Rights Committee held that a lawful termination of tenancy rights under Croatian law amounted to an arbitrary interference with the right to home and violated art 17 of the International Covenant on Civil and Political Rights. The termination [...]
UN Human Rights Committee Rules on Family Contact with Prisoners Tornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009) The UN Human Rights Committee has held that the rights of a prisoner’s relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, [...]
Obligations of States to Citizens Detained Abroad Khadr v Canada (Minister for Justice) [2009] FC 405 On 23 April 2009, the Federal Court of Canada handed down a decision which discussed in detail the right of citizens to request their government to provide protection against acts which violate accepted norms of international law during a [...]
Canadian Supreme Court Considers Right to Privacy R v Patrick, 2009 SCC 17 (CanLII) (9 April 2009) The Supreme Court of Canada has held that no privacy interest exists in the contents of garbage bags placed out for collection. Police had seized garbage bags from an individual’s property, and used their contents to justify obtaining [...]
Detention and Treatment in Government-Run ‘Sobering Up’ Centre may Amount to Ill-Treatment Wiktorko v Poland [2009] ECHR 14612/02 (31 March 2009) The European Court of Human Rights has held that the treatment of a Polish national, whilst detained at a government-run ‘sobering-up centre’, constituted degrading treatment in violation of the substantive protection of art 3 [...]
Freedom of Expression and Public Participation in Decision-Making Dixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009) This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms. Garson J declined to follow earlier defamation [...]
Right to Fair Hearing and Legal Representation in Disciplinary Proceedings Lam Siu Po v Commissioner of Police [2009] HKCFA 24 (26 March 2009) In a case relating to the validity of a statutory bar to legal representation in police disciplinary proceedings, the Court of Final Appeal of Hong Kong established the following principles: the right [...]
Stay of Eviction into Homelessness Required to Prevent Violation of Human Dignity and Rights Machele and 67 Others v William Marofane Mailula and Others [2009] ZACC 7 (26 March 2009) The Constitutional Court of South Africa held that eviction will ‘always’ be a constitutional matter. The court further held an interim execution order for eviction [...]
South African Constitutional Court Considers the Right to Sufficient Water and a Dignified Life City of Johannesburg and Others v Mazibuko and Others (489/08) [2009] ZASCA 20 (25 March 2009) In this case, the Supreme Court of South Africa considered whether a local authority had a duty under the South African Constitution to provide free [...]
Indefinite Detention Violates the Right to Liberty and Security of Person Canada (Citizenship and Immigration) v Li, 2009 FCA 85 (CanLII) (17 March 2009) The Federal Court of Appeal of Canada (‘FCA’) has held that indefinite detention is a violation of the right to liberty and security of person. Facts The Respondents are brothers Dong [...]
State Obligation to Conduct Public Investigation into Potential Violations of the Right to Life and Prohibition against Ill-Treatment AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009) The UK Court of Appeal has affirmed that the government has an [...]
Discrimination on the Ground of Poverty Boulter v Nova Scotia Power Incorporation, 2009 NSCA 17 (CanLII) (13 February 2009) This decision of the Nova Scotia Court of Appeal considered whether discrimination on the grounds of poverty is contrary to the right to equality under the Canadian Charter of Rights. The Court held that poverty is [...]
In the case of Leonidis v Greece, the European Court of Human Rights considered art 2 of the European Convention on Human Rights in the context of the police shooting of an 18 year old male (Victim). In making its decision, the Court considered whether: the death of the applicant’s son amounted to a breach [...]
The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoðan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoðan’s right to freedom of speech in violation of art 10 of the European Convention on Human Rights. Article [...]
In this case, the European Court of Human Rights considered the right to freedom of expression in the context of political advertising in the media. This judgment again shows that there must be a reasonable relationship of proportionality between the legitimate aim pursued by a statutory prohibition and the means deployed to achieve that aim. [...]
The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’. This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital [...]
The House of Lords has held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights. Detailed case note.
The case concerns the applicant’s complaint about the excessive length of his pre-trial detention and inadequacy of the medical care he had received during that time. After the applicant’s death, the applicant’s wife alleged that the authorities contributed to her husband’s death by failing to take the appropriate measures to protect his health and life. [...]
The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law. This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter. Detailed case note.
The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police. Detailed case note.
The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody. Detailed case note.
In this case, the House of Lords decided that a police response to sectarian unrest in Northern Ireland did not constitute a breach by the State of its positive obligation to prevent the infliction of inhuman and degrading treatment upon its citizens under art 3 of the European Convention on Human Rights. Baroness Hale discussed [...]
The Supreme Court of British Colombia in Canada has made declarations that certain by-laws, enacted by the City of Victoria, violated s 7 of the Canadian Charter of Rights and Freedoms as they deprived homeless people of their right to life, liberty and security. The effect of this declaration was that those by-laws are of [...]
The England and Wales Court of Appeal has held that a defendant should not be identified if it would lead to a ‘real and immediate’ risk to their right to life. Detailed case note.
The Social Security Contributions and Benefits Act 1992 (UK) provides for a ‘disability premium’ for people receiving welfare payments, except where the person is ‘without accommodation’. In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights. Detailed case note.
On 16 October 2008, the European Court of Human Rights held that the suicide of a mentally ill prisoner in France was attributable to the authorities’ failure to provide adequate medical care. This failure was a breach of the deceased’s right to life and right to be free from inhuman or degrading treatment. Detailed case [...]
The England and Wales High Court (Administrative Court) has held that the Secretary of State’s decision that the applicant’s next Parole Board review should take place approximately 18 months after the last one, amounted to a violation of art 5(4) of the European Convention on Human Rights which entitles a person to challenge the lawfulness [...]
This case concerned an application for special costs. The Supreme Court of British Columbia held that the proceeding was public interest litigation, and that special costs could therefore be awarded to the plaintiffs. Detailed case note.
Article 6(1) of the European Convention of Human Rights provides, ‘[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.’ This case was an appeal from a decision of the High Court holding that art 6(1) [...]
The House of Lords recently ruled that a foreign national could not be removed from the UK in circumstances that would completely deny or nullify her right to family life, since such removal would be incompatible with the UK’s obligations under the European Convention on Human Rights, given domestic effect by the Human Rights Act [...]
The England and Wales Court of Appeal recently allowed an appeal against a decision of the Asylum and Immigration Tribunal regarding the deportation of AS, a Pakistani national. The Court held that the Tribunal erred in two respects: first, in finding that deportation would not interfere with AS’ right to respect for his private and [...]
The European Court of Human Rights has held that a UK decision of a public authority to remove a child from its family, on the basis of an incorrect diagnosis, was not a breach of art 8 of the European Convention of Human Rights which provides for the right to respect for private and family [...]
This case deals with the difficult issue of determining funding priorities in the provision of health care. In this matter, the England and Wales High Court held that the decision of a health service not to fund a relatively new cancer drug was unreasonable. The Court held that where a decision of a public authority [...]
The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR. The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions [...]
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’ [...]
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006. Detailed case [...]
The Human Rights Committee has found that the State party breached art 2(3) (adequacy of remedy), when read with art 7 (torture and other prohibited treatment), of the ICCPR, by failing to ensure that complaints about mistreatment by police officers were adequately and satisfactorily investigated by competent authorities. Detailed case note.
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public. Detailed case note.
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment [...]
The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation. Detailed case note.
In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment. Detailed case note.
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no [...]
The European Court of Human Rights has held that the measures taken by a Finnish hospital to safeguard the right to respect for private life of an HIV-positive patient of the hospital, who was also employed by the hospital from time to time as a nurse, were inadequate and in violation of art 8 (the [...]
In this case, the House of Lords considered the applicability of the leading right to life case, Osman v United Kingdom (1998) 29 EHRR 245, in which the European Court set out the obligations on member states in relation to the right to life. Pursuant to the European Court decision, states have a positive obligation [...]
The UK House of Lords has considered the procedural safeguards against eviction established by the right to respect for privacy and the home under art 8 of the European Convention on Human Rights. Detailed caes note.
This case involved a dentist who was criminally charged with the indecent assault of three patients. He was acquitted of these charges but was then subjected to professional disciplinary action. The dentist claimed that the subsequent charges by the Dental Complaints Assessment Committee were contrary to the common law principle against double jeopardy and in [...]
The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights. Detailed case note.
The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values. This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’. M publicly [...]
The Supreme Court of British Columbia has held that the decisions of a Provincial Court and a public official to authorise medically-necessary blood transfusions for four infants against the express wishes of their parents did not breach the parents’ rights under the Canadian Charter of Rights and Freedoms. Detailed case note.
The European Court of Human Rights held that there had been a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because the applicant’s conditions of detention were not appropriate to his state of health. In the Court’s view, in circumstances such as these, the State should [...]
In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms. In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality. Detailed case note.
In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights. Further, the House of Lords held that a conviction [...]
The UK High Court of Justice has recently considered the meaning of ‘public authority’ under the Human Rights Act 1998 (UK). In this decision, Registered Social Landlords were held to be public authorities for the purposes of the Act. Detailed case note.
The Grand Chamber of the European Court of Human Rights has held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his family and private life.
The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings. However, the Court held that a denial of legal aid was justified where [...]
The House of Lords held that the right to family life should be interpreted broadly, and encompass consideration of the rights of other family members, when determining an appeal against the Secretary of State’s refusal of leave to remain under s 65 of the Immigration and Asylum Act 1999 (UK). Detailed case note.
The Supreme Court of Canada recently considered the validity of a rebuttable presumption that minors committing serious offences should be sentenced as adults. A majority of the Court concluded that the presumption offended against the right not to be deprived of liberty otherwise than in accordance with principles of fundamental justice under s 7 of [...]
The Supreme Court of British Columbia recently declared that laws which made safe self-injecting rooms illegal were unconstitutional and incompatible with the rights to life, liberty and security of the person in the Canadian Charter of Human Rights and Freedoms. Detailed case note.
The England and Wales Court of Appeal has considered that scope of a child’s right to privacy in a case in which photographs of the child of a celebrity were taken and published without consent. Detailed case note.
The European Court of Human Rights has found that the United Kingdom violated art 8 of the European Convention on Human Rights by failing to provide adequate procedural safeguards to protect the right to respect of a person’s home in the context of public housing. Detailed case note.
A decision of the ACT Supreme Court has considered the scope of the right to family life and protection in the context of adoption proceedings. Detailed case note.
The European Court of Human Rights has held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son. The applicant was awaiting a final determination on a serious assault charge. Although his wife had previously made a statement [...]
The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity. In particular, the Court held that a requirement that leave to [...]
In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion [...]
The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances. Detailed case note.
In this case, the European Court of Human Rights considered human rights issues arising from involuntary admission and treatment on the ground of mental illness. Detailed case note.
In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial. Detailed case note.
The European Court of Human Rights has considered a case of nuisance caused by a wind turbine, based on the right to respect for private and family life (art 8) and the right to protection of property (art 1 of Protocol No 1) of the European Convention on Human Rights. Detailed case note.
The European Court of Human Rights held that the Russian Federation violated its positive obligation to protect the right to life under art 2 of the European Convention on Human Rights by failing to: establish legislative and administrative frameworks to deter any threat to the right to life; and provide an adequate judicial response following [...]
In this decision, the UK House of Lords held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights. Detailed case note.
This decision of the South African Constitutional Court concerns whether the imprisonment of a remand prisoner in maximum security custody deprived him of liberty arbitrarily or without just cause. Detailed case note.
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy. Detailed case note.
In this decision, the UK Court of Appeal held that a claim in negligence against the police for failing to protect life should have regard to the duties imposed and standards required by art 2 of the European Convention on Human Rights. Detailed case note.
In this decision, the UK Court of Appeal found that there may be a breach of arts 5(4) and 5(1)(a) of the European Convention on Human Rights where a prisoner is detained for longer than is necessary for the protection of the public. These provisions may also be infringed where a prisoner is detained for [...]
In this case, the European Court of Human Rights considered the legality of: 1. detaining a mentally ill prisoner pending transfer to a psychiatric hospital; and 2. the length of pre-trial detention – under arts 5(1) and 5(3)of the European Convention on Human Rights. Detailed case note.
In a landmark judgment of the South African Constitutional Court, the Court’s key message was that human beings must be treated as such. The judgment affirms the basic principle that where people face homelessness due to an eviction, public authorities should engage seriously and in good faith with the affected occupiers with a view to [...]
The Grand Chamber of the European Court of Human Rights has recently considered the scope and application of art 7 of the European Convention on Human Rights, which provides that no person shall be subject to a ‘heavier penalty than the one that was applicable at the time the criminal offence was committed’. Detailed case [...]
The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation. Detailed case note.
The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights. This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’. [...]
The Grand Chamber of European Court of Human Rights in E.B. v France held that the refusal to authorise an adoption application by a woman in a same-sex relationship, on the basis of her sexuality, amounted to a violation of arts 14 and 8 of the European Convention on Human Rights. Detailed case note.
The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life. Detailed case note.
The European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention. The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, [...]
On 4 December 2007, the Grand Chamber of the European Court of Human Rights handed down it’s decision in Dickson v The United Kingdom, a case concerning prisoners’ access to artificial insemination facilities. The applicants complained that the refusal by the Secretary of State to allow the first applicant access to artificial insemination facilities whilst [...]
The European Court of Human Rights recently held that the imprisonment of a journalist for refusing to disclose the identity of a confidential source constituted a violation of the right to freedom of expression under art 10 of the European Convention on Human Rights. Detailed case note.
The Queen’s Bench Division of the UK High Court has considered whether handcuffing two sick prisoners during treatment violated their right to freedom from cruel, inhuman or degrading treatment under art 3 of the European Convention on Human Rights. Detailed case note.
In a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life. The judgment also [...]
The European Court of Human Rights in Oganova v Georgia found that, generally, the right to a fair hearing implies the right to an oral hearing but that, in certain special circumstances, it may be permissible for an appellate court to determine a matter by written submissions in the interests of the efficient administration of [...]
In Gault v United Kingdom, the European Court of Human Rights held that the detention of Ms Lesley Gault pending re-trial violated art 5(1)(c) of the European Convention on Human Rights. Relevantly, the Court held that, pursuant to art 5(1)(c), the proximity or imminence of a trial does not justify pre-trial detention that would not [...]
The European Court of Human Rights has recently considered the content and application of the rights to freedom of peaceful assembly and association, holding that ‘the right to freedom of assembly is a fundamental right in a democratic society’ and that any exceptions to the right ‘must be narrowly interpreted and the necessity for any [...]
The Grand Chamber of the European Court of Human Rights has considered the nature and scope of art 14 of the European Convention on Human Rights, which enshrines the right to non-discrimination and the equal enjoyment of human rights. The Grand Chamber held that the education policy in the Czech Republic, which resulted in the [...]
This decision considered the extent to which it is permissible for a state to limit the right to freedom of peaceful assembly and association in the context of a public demonstration. Detailed case note.
The European Court of Human Rights has held that the eviction of a woman from public housing in circumstances where the public authority had not ensured that she had adequate alternative housing constituted a violation of the right to respect for private life and the home. Detailed case note.
In a judgment handed down on 31 October 2007, the House of Lords held that obligations imposed on six men under control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 (UK) (‘PTA’), deprived those men of their liberty in violation of art 5 of the European Convention on Human [...]
To what extent is it acceptable to limit the right to freedom of expression to protect a person’s reputation? A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question. Detailed case note.
The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest. The decision addressed the permissible limitations on the right to freedom of expression [...]
In a decision regarding mandatory immigration detention, the UN Human Rights Committee has elucidated its jurisprudence on the content and application of art 9 of the ICCPR, the right to liberty and security of person and to be free from arbitrary detention. Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Detailed case note.
In this case, the applicant, a man with chronic schizophrenia, was subjected to the practices of restraint and seclusion while detained. The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of [...]
The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right. Detailed case note.
A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and [...]
In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australia in violation of art 14(1) of the International Covenant on Civil and Political Rights. Detailed case note.
The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on [...]
The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law [...]
This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody. In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test [...]
The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law [...]
The European Court of Human Rights has held that pre-trial custody will only be lawful if there are ‘relevant and sufficient’ grounds for detaining a person. Prolonged pre-trial detention must be regularly reviewed and will only be justifiable in exceptional circumstances. Detailed case note.
In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’). Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected [...]
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts. Detailed case note.
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts. Detailed case note.
The UK House of Lords has delivered a much anticipated judgment regarding the meaning of ‘functions of a public nature’ and ‘public authority’ under the Human Rights Act 1998 (UK). The case concerns the issue as to whether a private care home is providing functions of a public nature, with a majority of the House [...]
The European Court of Human Rights has held that serious allegations of torture or other cruel, inhuman or degrading treatment or punishment must be the subject of expeditious, effective and independent investigation. It has further held that evidence of ill-treatment, particularly of persons in custody, will give rise to a rebuttable presumption that the ill-treatment [...]
This decision of the England and Wales High Court concerned an application for judicial review – on the basis of interference with the right to private and family life - of a compulsory acquisition order made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of [...]
The UK Court of Appeal has held that a delay in determining eligibility for parole may amount to arbitrary and unlawful detention. Detailed case note.
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ). Detailed case note.
The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups. Detailed case note.
In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing. Detailed case note.
The UK Court of Appeal has held that the right to life imposes a positive obligation on responsible authorities to take reasonable steps to safeguard the lives of those in their jurisdiction as against known and immediate risks. Detailed case note.
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ‘shall comply’ with medication prescribed by a specified [...]
The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner’s inquest. Central to the decision was the finding that funding was necessary to carry out an effective investigation into [...]
The European Court of Human Rights has held that a public college which monitored an employee’s telephone, email and internet usage without her knowledge engaged in conduct amounting to an interference with her right to respect for private life and correspondence within the meaning of art 8 of the European Convention. Detailed case note.
The UK Court of Appeal has held that the requirement under the Human Rights Act 1998 (UK) that, so far as it is possible to do so, legislation be interpreted and applied compatibly with human rights required that legislation which, on its natural meaning imposed a burden on defendants to establish their innocence, be read [...]
In a series of recent cases, the European Court of Human Rights has found conditions of detention in prisons to be incompatible with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined in art 3 of the European Convention on Human Rights. Detailed case note on the cases of Andrey [...]
On 23 February 2007, the Supreme Court of Canada overturned provisions of the Immigration and Refugee Protection Act 2001 (Can) relating to the detention of permanent residents and foreign nationals on the basis that the provisions contravened the Canadian Charter of Rights and Freedoms. The Canadian Parliament was given one year to rewrite the IRPA [...]
The ACT Supreme Court has recently considered the application of s 30(1) of the Human Rights Act 2004 (ACT), which provides that, ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ The Victorian Charter of Human Rights and Responsibilities [...]
The European Court of Human Rights has found a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the authorities’ failure to provide a prisoner with medical care appropriate to his conditions. Detailed case note.
On 13 November 2006, the UN Human Rights Committee further elaborated on what constitutes arbitrary detention for the purposes of art 9(1) of the ICCPR, finding that there must be ‘appropriate justification’ for continued mandatory detention in light of the circumstances of the particular case. It further re-affirmed its view that, pursuant to art 9(4), [...]
The ACT Supreme Court has recently considered the relevance of the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) to the extension of time limits in civil proceedings. Detailed case note.
In this decision, the UN Human Rights Committee found Australia in breach of the right to freedom of expression and commented on the human rights implementation obligations of States and Territories. Detailed case note.
This decision of the UN Human Rights Committee concerns Australia’s policy of mandatory immigration detention. Detailed case note.
This case concerned the right of a child to a fair trial without unreasonable delay under the Human Rights Act 2004 (ACT). After considering jurisprudence from the European Court of Human Rights, the Magistrate held that there had been an unreasonable delay contrary to the human right enshrined in the Act and ordered a permanent [...]
In March 2006, the UN Human Rights Committee (‘HRC’) published a landmark finding concerning alleged breaches of articles 2(3) (right to an effective remedy), 7 (right to freedom from cruel, inhuman or degrading treatment or punishment), 10 (rights of persons deprived of their liberty) and 24 (right to adequate protection for children) of the International [...]
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