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s21 – Rights to Liberty and Security of Person
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 [...]
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011) Summary The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Relevance of the Victorian Charter to Breath and Blood Testing DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010) The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered [...]
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 [...]
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 [...]
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) [...]
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 [...]
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 [...]
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, [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Interpretation and Limitation of Rights in relation to Extended Supervision of Sex Offender Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009) The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Failure to Review Involuntary Treatment a Breach of Human Rights Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter. [...]
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 [...]
The Treatment of Delay under the Bail Act post-Charter: Is Change Required? DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009) The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic). Facts The appellant, Pasquale Barbaro, was [...]
Prohibition against Arbitrary Detention and the Right to Procedural Fairness A and Ors v United Kingdom [2009] ECHR 3455/05 [Grand Chamber] (19 February 2009) In a case relating to the detention of non-national terror suspects in the UK, the European Court of Human Rights held that: detention pending deportation cannot be justified under art 5(1)(f) [...]
House of Lords considers Human Rights Implications of Potential Torture of Terror Suspects RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 (18 February 2009) In this case the House of Lords dismissed appeals by RB and U, Algerian nationals, from the Court of Appeal which had allowed their appeals from [...]
Police Powers, Crowd Control and the Right to Liberty and Protest Austin & Anor v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009) In this case, the House of Lords dismissed an appeal by a woman claiming that her right to liberty was breached as a result of police crowd control [...]
Right to Liberty and Judicial Review of Lawfulness of Detention Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009) The House of Lords has held that the Justice Secretary’s power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the [...]
In refusing an application for bail, Justice Lasry of the Victorian Supreme Court considered the impact of s 21(5) of the Charter – which provides the right to be brought to trial without unreasonable delay – on the Bail Act 1997 (Vic). Detailed case note.
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 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.
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 the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused [...]
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 [...]
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 [...]
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.
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.
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.
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 [...]
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), [...]
This decision of the UN Human Rights Committee concerns Australia’s policy of mandatory immigration detention. Detailed case note.
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