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LITIGATION AND ADVICE
TRAINING: BUILDING CAPACITY
OTHER PROJECTS
GENERAL
LATEST CASES FROM COMMON LAW JURISDICTIONS
LITIGATION AND ADVICE
Brief on Head of State Immunity in Case against Robert Mugabe Accepted by
US Court of Appeals
On a visit to the US in 2001 Robert Mugabe was served with a civil suit, together with his foreign minister and the Zanu PF party, by several plaintiffs on behalf of themselves and their families who had suffered murder, torture, rape and other serious human rights violations in Zimbabwe. At trial, it was held that the defendants enjoyed immunity from suit as serving head of state and minister, although this did not extend to Zanu.
At the request of trial lawyers representing the appellants, INTERIGHTS drafted an amicus brief outlining the jus cogens status of fundamental rights guaranteeing personal liberty and security and why they should defeat any claim of head of state immunity. Drawing on both the developments under international and domestic law, the brief sought to argue that the Pinochet decision should be extended to serving heads of state. The brief was accepted by the US Court of Appeals, and the case was heard on 5 March 2004. The panel recognised the strength of the appellant arguments, however all arguments were decided in favour of the Zanu PF party and on 6 October 2004, the Court dismissed the appeal. Appellant counsel plans to plan a petition for a rehearing followed by a cert petition to the Supreme Court should a rehearing not be granted.
Read INTERIGHTS' amicus brief here.
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TRAINING: BUILDING CAPACITY
First International Human Rights Judicial Colloquium in Fiji Produces Suva Principles on Judicial
Independence and Access to Justice
The Suva Statement of Principles on Judicial Independence and Access to Justice is the final communiqu�
agreed at the close of the first international human rights judicial colloquium held in the Fiji Islands. It reaffirms the
commitment of the judiciary to take appropriate measures to uphold the rule of law and access to justice, whatever the
prevailing political climate, including the humane treatment of all detainees, disregarding evidence obtained through torture
and the relevance of applying international human rights law in decision-making.
Held in the capital Suva from 6 to 8 August 2004 and co-organised by INTERIGHTS and the Fiji Human Rights Commission and Fiji Judiciary, the �Access to Justice in a Changing World' event brought 13 Fijian judges together with 7 international jurists and experts from Canada, New Zealand, Australia, Papua New Guinea, Zambia and Geneva to hold a full and frank exchange of views on current challenges facing the judiciary in a politically uncertain world.
The main foci of the two-day sessions were judicial independence, protecting civil liberties and how to ensure access to justice for marginalised groups. Local developments such as the introduction of an anti-terrorism bill, the continuing marginalisation of different ethnic groups and the lack of any regional human rights mechanism highlighted the need for such an event. This was noted by the Fijian media during the two days, with the Colloquium receiving national network news coverage.
The Honourable Mr Jonetani Cokanasiga, Fiji's Acting Minister for Justice opened the Colloquium, addressing an audience that included members of the Diplomatic Corps, the judiciary, the Chief Justice of Fiji, the Chair of the Fiji Human Rights Commission and members of the media. Over the next two days, international jurists presented papers on experiences within their national jurisdictions, framing them within the wider international context. Local judges followed with critical commentaries that examined those issues from the Fijian perspective. Healthy dialogue followed each of the sessions, and the main principles that came out of that discussion were distilled in the final communiqu�.
The Colloquium follows a highly successful training programme for Fiji judges conducted by INTERIGHTS in 2003, in which staff ran sessions on comparative and international human rights law, enabling judges to assess some of their own decisions against new benchmarks. The recent Colloquium was part of a continuing wider INTERIGHTS initiative to develop its human rights work in an area of the Commonwealth that is frequently neglected.
Feedback from the participants was very positive, and will feed into planning for possible future events in Fiji in 2005.
The various papers and commentaries presented by the judges examining the themes of judicial independence, the protection of civil liberties and how to ensure access to justice for marginalised groups from both national and international perspectives, are published in an online report.
Read the Suva Statement of Principles here.
This event was kindly sponsored by NZAid, AusAid, the Commonwealth Foundation and the British Foreign & Commonwealth Office.
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| Local and international judges and staff of the Fiji Human Rights Commission and INTERIGHTS at the 'Access to Justice in a Changing World' Judicial Colloquium, held in Suva, Fiji, 6-8 August 2004
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First Human Rights Training of High Court and Court of Appeal Judges in Fiji
INTERIGHTS participated in the first human rights training of High Court and Court of Appeal judges in Fiji. The training, which was also attended by the Chief Justice, was organised in conjunction with the Fijian Human Rights Commission on 9 August 2003 in Suva. Fiji has one of the most progressive Constitutions in the Commonwealth empowering judges to make explicit use of international human rights standards, even in the absence of ratification. However, without awareness of and access to the case law interpreting such standards, this positive framework can be largely meaningless.
Complementing the local expertise of the Commission on interpreting the Constitution, INTERIGHTS' Commonwealth and Equality Legal Officers ran sessions on comparative and international human rights law, enabling judges to assess some of their own recent decisions against new benchmarks. Subjects discussed included the right to life, freedom from torture and ill treatment, free expression, equality and non-discrimination. The enthusiastic participants expressed their hope that the event would become a regular occurrence. The initiative is part of a wider project to develop the work of INTERIGHTS in a region of the Commonwealth that is frequently neglected.
Further information about the work of the Commission can be found at
http://www.humanrights.org.fj.
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OTHER PROJECTS
Joint Event Highlights Challenges to Human Rights Defenders in the Commonwealth
Supporting Human Rights Defenders in the Commonwealth � What Can Be Done?
22 April 2004 � Institute of Commonwealth Studies, London
In support of human rights defenders around the Commonwealth, INTERIGHTS and the Commonwealth Lawyers' Association (CLA) organised a seminar on the current situation of human rights defenders in the region and the practical steps that can be taken to help them.
A timely event, it addressed the many and varied restrictions that human rights defenders face in carrying out their much-needed work in different parts of the Commonwealth, particularly since the events of September 11.
Speakers included Andrew Anderson, Deputy Director of Front Line, the International Foundation for the Protection of Human Rights Defenders, Jane Winter, Director of British Irish Rights Watch and Irene Petras, Coordinator of Zimbabwe Lawyers for Human Rights. The meeting was chaired by INTERIGHTS' Commonwealth Law Officer and the President of the CLA, Colin Nicholls QC.
The audience heard that in some Commonwealth countries such as Zimbabwe, assaults on human rights defenders are a daily occurrence, and the rule of law is so systematically disregarded that it is almost impossible for them to carry out their work. In others, defenders face persecution for upholding the rights of workers (Malaysia), women (Nigeria) or torture victims (India, Malaysia and Sri Lanka).
�The situation has worsened in the aftermath of the 11 September attacks,' said Andrew Anderson. �Human rights defenders face greater challenges in their work of promoting and protecting the human rights of all. There is real danger that some governments may be using the global war on terrorism as a pretext to infringe on human rights and to clamp down on human rights defenders.'
Neither are the countries of the West that profess to uphold human rights blameless � Jane Winter highlighted the practice of high-level intimidation of human rights defenders in Northern Ireland.
Each of the organisations present offered practical solutions on how to help human rights defenders continue their work. This included giving grants to those defending human rights, making continuing appeals on their behalf to state institutions and governments and promoting stronger links between defenders through on- and offline publications.
A major focus of the discussion was the urgent need to train lawyers, judges and activists from around the Commonwealth in human rights issues, both by setting up mentoring schemes between senior and junior human rights lawyers, and through providing specially tailored training workshops supported by legal materials and resources.
Baroness Helena Kennedy QC, Chair of the British Council, gave the keynote speech in which she outlined her disappointment
Click here to access the Commonwealth Lawyers' Association website.
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GENERAL
Major Report on Right to Information in the Commonwealth
The Commonwealth Law Programme provided extensive comparative jurisprudence on the application of the right to information across the Commonwealth as part of a major report published by the Commonwealth Human Rights Initiative in New Delhi at the end of 2003. Entitled Open Sesame: Looking for the Right to Information in the Commonwealth, chapters include 'Right to Information: Touchstone for Democracy and Development', 'Balancing the Scales of Power: Legislating for Access', 'Making it Work: Entrenching Openness' and 'People Power: Civil Society Advocacy Experiences'.
Click here for more information.
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LATEST CASES FROM COMMON LAW JURISDICTIONS
Monthly round-ups of recent significant human rights decisions from common law jurisdictions.
May 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004
August/September 2004
July 2004
June 2004
May 2004
April 2004
March 2004
February 2004
January 2004
December 2003
November 2003
October 2003
September 2003
August 2003
May 2005
Last updated June 2005
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] HCA 29
High Court, 26 May 2005: REFUGEES; RELIGION
Refugee Tribunal entitled to distinguish between Christians in Iran who were at real risk of persecution because they were engaged in active proselytism and those who were not because they kept a low profile.
Full text at
www.austlii.edu.au/au/cases/cth/HCA/2005/29.html
Rocca v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 71
Federal Court, 10 May 2005: IMMIGRATION; CHILDREN
Authorities not bound by ratification of Convention on the Rights of the Child to take into account best interests of applicant's children and grandchildren in deciding to cancel his visa.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2005/71.html
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] HCA 24
High Court, 18 May 2005: REFUGEES; FAIR HEARING
Asylum seekers denied procedural fairness by failure to give them proper notice about the circumstances in which Tribunal procured evidence taken in private from eldest daughter of one of them, the relevance of her testimony and opportunity to comment on it.
Full text at
www.austlii.edu.au/au/cases/cth/HCA/2005/24.html
VNAY v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 96
Federal Court, 13 May 2005: REFUGEES, POLITICAL OPINION
Asylum seeker denied protection where fear of persecution arose not from a Convention reason, i.e. political opinion, but due to threat of murder by non-state political figure; discussion of ‘political opinion': knowledge that loaned vehicle was used for political propaganda did not constitute such opinion.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2005/96.html
House of Commons and Anor v Vaid and Anor
2005 SCC 30
Supreme Court, 20 May 2005: PARLIAMENTARY PRIVILEGE; JURISDICTION
Human rights legislation applicable to Parliamentary employees; scope of Parliamentary privilege.
Full text at
www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc030.wpd.html
Smith and Nephew Inc v Glegg
2005 SCC 31
Supreme Court, 20 May 2005: PRIVACY; DISCLOSURE
Waiver of medical profession confidentiality does not authorise unlimited and uncontrolled access to medical records. Access will depend on relevance of requested information to merits of case and conduct of defence.
Full text at
www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc031.wpd.html
Langford and Anor v The State
[2005] UKPC 20
Privy Council, 11 May 2005: FAIR HEARING
Summing up on identification evidence failed to satisfy Turnbull requirements.
Full text at
www.bailii.org/uk/cases/UKPC/2005/20.html
Morgan v The Superintendent, Rimutaka Prison
[2005] NZSC 26
Supreme Court, 19 May 2005: LIBERTY AND SECURITY, SENTENCING
No infringement of prisoner's right to a lesser penalty requiring early release since change in legislation did not vary maximum tariff.
Full text at
http://www.justice.govt.nz/judgments
Laugh It Off Promotions CC v South African Breweries (Finance) B.V. t/a Sabmark International
CCT 42/04
Constitutional Court, 27 May 2005: EXPRESSION
Satire protected by right to free speech.
Full text at
www.constitutionalcourt.org.za/site/laughitoff.html
The President of the Republic of South Africa and Anor v Modderklip Boerdery (PTY) Ltd
CCT 20/04
Constitutional Court, 13 May 2005: HOUSING; PROPERTY; REMEDIES
Unreasonable for private entity to bear the burden for providing illegal occupiers of land with accommodation; breach of private entity's right to an effective remedy; compensation for loss instead of restitution allowed squatters to have accommodation until suitable alternatives were found.
Full text at
www.constitutionalcourt.org.za/site/modderklip.html
Sibiya and Ors v Director of Public Prosecutions (Johannesburg High Court) and Ors
CCT 45/04
Constitutional Court, 25 May 2005: DEATH PENALTY; SENTENCING; FAIR HEARING
Procedure for replacing death penalty with other sentences did not infringe fair trial rights where accused had already received fair hearing at original trial.
Full text at
www.constitutionalcourt.org.za/site/Sibiya.html
Alabaster v Barclays Bank Plc & Anor
[2005] EWCA Civ 508
Court of Appeal, 3 May 2005: EQUALITY; WORK
Claim for sex discrimination in relation to non payment of increased maternity pay could dispense with need for male comparator as stipulated by Equal Pay Act.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2005/508.html
Attorney General v Scotcher
[2005] UKHL 36
House of Lords, 19 May 2005: EXPRESSION
Holding juror in contempt of court for disclosing information he received in confidence from his fellow jurors was a reasonable restriction on his freedom of expression.
Full text at
www.bailii.org/uk/cases/UKHL/2005/36.html
Bagdanavicius and Anor, R (on the application of) v Secretary of State for the Home Department
[2005] UKHL 38
House of Lords, 26 May 2005: TORTURE AND ILL TREATMENT; REFUGEES, DEPORTATION
Risk of ill treatment from non-state agents insufficient to prevent deportation in absence of evidence that state will not offer reasonable level of protection.
Full text at
www.bailii.org/uk/cases/UKHL/2005/38.html
Carson, R (on the application of) v Secretary of State for Work and Pensions
[2005] UKHL 37
House of Lords, 26 May 2005: EQUALITY; SOCIAL SECURITY
Ex-patriates' lack of entitlement to annual state pension increases did not amount to unfair discrimination.
Full text at
www.bailii.org/uk/cases/UKHL/2005/37.html
Dbeis and Ors v Secretary of State for the Home Department
[2005] EWCA Civ 584
Court of Appeal, 19 May 2005: REFUGEES; PRIVATE AND FAMILY LIFE; HEALTH; EDUCATION
Reasonable to return failed asylum seeker and her son suffering from cerebral palsy to country of origin where there were adequate medical and education facilities.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2005/584.html
Douglas and Ors v Hello! Ltd and Ors
[2005] EWCA Civ 595
Court of Appeal, 18 May 2005: PRIVACY; REMEDIES; EXPRESSION
Breach of celebrities' privacy by magazine upheld; consideration of appropriate level of damages and other relief.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2005/595.html
Holland v Her Majesty's Advocate (Devolution)
[2005] UKPC D1
Privy Council, 11 May 2005: FAIR HEARING, EVIDENCE
Use of dock identification evidence is not per se incompatible with the right to a fair trial.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/D1.html
Hooper and Ors, R (on the application of) v Secretary of State for Work and Pensions
[2005] UKHL 29
House of Lords, 5 May 2005: EQUALITY; SOCIAL SECURITY; PROPERTY; PRIVATE AND FAMILY LIFE
Denial of widows' benefits to widowers did not amount to unfair discrimination based on objective justification of women's disproportionate economic inactivity.
Full text at
www.bailii.org/uk/cases/UKHL/2005/29.html
J v Secretary of State for the Home Department
[2005] EWCA Civ 629
Court of Appeal, 24 May 2005: REFUGEES; TORTURE AND ILL TREATMENT; LIFE; PRIVATE AND FAMILY LIFE; MENTAL HEALTH
No real risk of suicide to justify preventing deportation of failed asylum seeker back to country of origin.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2005/629.html
Machado v Secretary of State for the Home Department
[2005] EWCA Civ 597
Court of Appeal, 19 May 2005: REFUGEES; PRIVATE AND FAMILY LIFE
Insufficient scrutiny by Tribunal of proportionality of impact on failed asylum seeker's right to private and family life of state's decision to deport him.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2005/597.html
N v Secretary of State for the Home Department
[2005] UKHL 31
House of Lords, 5 May 2005: REFUGEES; HEALTH; LIFE; INHUMAN TREATMENT
No breach of Article 3 ECHR by deporting failed asylum seeker with terminal HIV/AIDS back to country of origin with limited medical facilities; Article 3 does not require contracting states to undertake the obligation of providing aliens with indefinite medical treatment lacking in their home countries.
Full text at
www.bailii.org/uk/cases/UKHL/2005/31.html
Quayle and Ors v R
[2005] EWCA Crim 1415
Court of Appeal, 27 May 2005: PRIVATE LIFE
Drugs legislation banning cultivation and possession of cannabis did not conflict with right to private life.
Full text at
www.bailii.org/uk/cases/UKPC/2005/D2.html
Sinclair v Her Majesty's Advocate (Devolution)
[2005] UKPC D2
Privy Council, 11 May 2005: FAIR HEARING; EQUALITY OF ARMS
Failure of prosecution to produce or disclose to the accused the existence and contents of statements made to the police by a witness who corroborated the complainer's account of the incident was incompatible with the appellant's right to a fair trial.
Full text at
www.bailii.org/uk/cases/UKPC/2005/D2.html
Wilkinson, R (on the application of) v Inland Revenue
[2005] UKHL 30
House of Lords, 5 May 2005: EQUALITY; PROPERTY; PRIVATE AND FAMILY LIFE
Tax law denying widowers widows' bereavement allowance by way of deduction from their income tax liability was not discriminatory.
Full text at
www.bailii.org/uk/cases/UKHL/2005/30.html
Clingman v Beaver
04-37
Supreme Court, 23 May 2005: POLITICAL PARTICIPATION; ASSOCIATION
State's semiclosed primary system permitting political parties to invite only their own registered members and voters registered as independents to vote in their primary elections did not breach right to freedom of association.
Full text at
www.supremecourtus.gov/opinions/04slipopinion.html
Deck v Missouri
04-5293
Supreme Court, 23 May 2005: DEATH PENALTY; SENTENCING; LIBERTY AND SECURITY
Routine use of shackles and leg irons on convicted defendant in sentencing stage of capital murder case and absent any justified security concerns undermines jury's ability to make a fair and balanced decision on whether death penalty should be imposed or not.
Full text at
www.supremecourtus.gov/opinions/04slipopinion.html
April 2005
Last updated May 2005
Berry v Murray Goulbourn Co-operative Ltd
(U2004/6443)
Industrial Relations Commission, 21 April 2005: MENTAL ILLNESS; WORK
Employee should be reinstated where misconduct leading to dismissal was as a result of mental illness.
Full text at
http://www.airc.gov.au/documents/full_bench/
full_bench_decisions.html
In the Matter of an Application by the Chief Commissioner of Police (Vic)
[2005] HCA 18
High Court, 20 April 2005: FAIR HEARING, APPEAL, EVIDENCE
Appeal from order of trial judge to prohibit, for a limited time, the publication of methods and material used by police in murder investigations lay only by way of leave and not as of right; no lack of procedural fairness where appeal court only considered evidence relating to granting of leave and not substantive issues of appeal.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2005/18.html
Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 47
Federal Court, 8 April 2005: FAIR HEARING; IMMIGRATION
No denial of due process in decision to revoke student visa.
Full text at
http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/47.html
Canada (Minister of Citizenship and Immigration) v Williams
2005 FCA 126
Federal Court of Appeal, 12 April 2005: REFUGEES; NATIONALITY
Asylum seeker not deprived of the right of citizenship when he is given the possibility of renouncing the citizenship of a country where he is at risk of persecution in exchange for acquiring the citizenship of another where he is not at risk.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca126.html
Poshteh v Canada (Minister of Citizenship and Immigration)
2005 FCA 121
Federal Court of Appeal, 8 April 2005: REFUGEES; CHILDREN; LIBERTY & SECURITY
Principles of fundamental justice as guaranteed by s 7 of the Charter did not apply in consideration of whether a minor seeking asylum was entitled to special treatment where his presence was considered a threat to national security.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca121.html
R v Chow
2005 SCC 24
Supreme Court, 27 April 2005: PRIVACY, SEARCH & SEIZURE; FAIR HEARING, EQUALITY OF ARMS
Right to privacy was not violated by the authorised interception of accused's private telephone conversations since he was not a "known" person within the meaning of s. 185(1) of the Criminal Code when the initial authorizations were sought and obtained and, even assuming he was, other evidence unaffected by the alleged breach of his Charter rights amply supported the subsequent authorisations. Accused was not entitled to severance of trial in order to compel a co-accused to testify; denial of severance did not deprive accused of right to make full answer and defence.
Full text at
http://www.canlii.org/ca/cas/scc/2005/2005scc24.html
R v Mapara
2005 SCC 23
Supreme Court, 27 April 2005: FAIR HEARING, EVIDENCE; PRIVACY
Co-conspirator's exception to the hearsay rule meets the necessity and reliability requirements of the principled approach to hearsay and should not be set aside or altered even when applying to double hearsay.
Police did not breach interception authorisation where they recorded a three way conversation between the named person in the authorisation, the accused and a third party where the named person did not cease to be a party to the conversation.
Full text at
http://www.canlii.org/ca/cas/scc/2005/2005scc23.html
Sing v Canada (Minister of Citizenship and Immigration)
2005 FCA 125
Federal Court of Appeal, 11 April 2005: REFUGEES; TORTURE
Government has the onus to provide credible or trustworthy evidence on which a Refugee Tribunal can determine whether a claimant should be excluded from the Convention refugee definition; statements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca125.html
Tahmourpour v Canada (Solicitor General)
2005 FCA 113
Federal Court of Appeal, 6 April 2005: EQUALITY; FAIR HEARING
Investigation by Human Rights Commission of discrimination complaint did not meet the test of thoroughness and therefore fairness where it failed to investigate and analyse relevant statistical data and to conduct interviews of relevant witnesses leading to "obviously crucial evidence" being overlooked.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca113.html
Campbell v Hamlet
[2005] UKPC 19
Privy Council, 25 April 2005: FAIR HEARING
Conviction for manslaughter quashed after judge's direction on content of charge was held to be seriously deficient.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/19.html
Brooks v Commissioner of Police for the Metropolis & Ors
[2005] UKHL 24
House of Lords, 21 April 2005: LIFE, POSITIVE OBLIGATIONS
Police were not under a duty of care to (a) take reasonable steps to assess whether an individual was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment if he was so assessed; (b) take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence; and (c) afford reasonable weight to the account that he gave and to act upon it accordingly, since to expect them to do so would unduly hinder the police's operational effectiveness.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/24.html
JD v East Berkshire Community Health NHS Trust & Ors
[2005] UKHL 23
House of Lords, 21 April 2005: FAMILY LIFE; CHILDREN
Parents' rights under Article 8 ECHR not breached by denying that they are owed a duty of care by doctors or social workers who have falsely or negligently accused them of child abuse.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/23.html
R v Mushtaq
[2005] UKHL 25
House of Lords, 21 April 2005: FAIR HEARING, EVIDENCE
Article 6 ECHR does not require that a judge, who has ruled that a confession has not been obtained by oppression, nor is unreliable for any other reason, direct the jury, if they conclude that the alleged confession may have been so obtained, that they must disregard it.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/25.html
Sritharan v Law Society
[2005] EWCA Civ 476
Court of Appeal, 27 April 2005: PROPERTY
Law Society's decision to intervene in a solicitor's practice could, under certain circumstances, breach the latter's right to peaceful enjoyment of their possessions.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/476.html
March 2005
Ali v The Queen
[2005] HCA 8
High Court, 8 March 2005: FAIR HEARING, LEGAL REPRESENTATION; EVIDENCE
Counsel's failure to apply for separate trial and to object to evidence of bad character did not deprive accused of fair hearing.
Full text at
www.austlii.edu.au/au/cases/cth/
HCA/2005/8.html
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] HCA 6
High Court, 2 March 2005: REFUGEES
Availability of effective protection in third country did not negate obligations to refugees under the Refugee Convention; non-refoulement obligation precludes removal to a safe third country.
Full text at
www.austlii.edu.au/au/cases/cth/
HCA/2005/6.html
Le v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 51
Federal Court, 31 March 2005: REFUGEES; FAIR HEARING; CHILDREN
Duty to take into account best interests of children in considering extension of visa for parent; lack of due process not established.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/51.html
Peacock v Human Rights and Equal Opportunity Commission
[2005] FCAFC 45
Federal Court, 24 March 2005: EQUALITY; WORK
Refusal of Minister to exercise discretion to exempt employees from compulsory retirement did not amount to unlawful discrimination.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/45.html
SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 42
Federal Court, 17 March 2005: REFUGEES; WAR CRIMES & CRIMES AGAINST HUMANITY
Immigration appeals tribunal failed to consider applicability of ICC Rome Statute and correct definitions of war crimes and crimes against humanity in denying suspect's refugee claim; extensive discussion of development of international criminal law.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/42.html
MZQAP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 35
Federal Court, 15 March 2005: REFUGEES
Consideration of the circumstances in which conduct undertaken pursuant to a law of the country of nationality of a putative refugee may constitute persecution within the meaning of Article 1A(2) of the Convention; prosecution for membership of a proscribed organisation under a general law of application did not equate to persecution.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/35.html
Sebastian v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 31
Federal Court, 14 March 2005: REFUGEES; CHILDREN
Tribunal was correct to consider a range of factors (including but not exclusively whether he should remain with parents) when deciding whether it was in best interests of child to grant father protection visa.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/31.html
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 37
Federal Court, 11 March 2005: REFUGEES
Reasonableness of expecting asylum seeker to be able to relocate within country of origin in order to avoid harassment and assault on grounds of ethnicity.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/37.html
Knowles & Ors v Superintendent of HM Prison Fox Hill & Ors
[2005] UKPC 17
Privy Council, 23 March 2005: LIBERTY & SECURITY; JURISDICTION
Court of Appeal lacked jurisdiction to set aside decision granting bail.
Full text at
www.bailii.org/uk/cases/UKPC/2005/17.html
Meerabux v Attorney General
[2005] UKPC 12
Privy Council, 23 March 2005: FAIR HEARING, BIAS, PUBLIC HEARING
Mere membership of Bar Association from which majority of complaints arose against a judge insufficient to disqualify person from presiding over judicial disciplinary proceedings; no requirement to hold proceedings in public.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/12.html
CANADA
Gosselin (Tutor of) & Ors v Attorney General of Quebec & Anor
[2005] SCC 15
Supreme Court, 31 March 2005: EQUALITY; MINORITIES; LANGUAGE; EDUCATION
Right to equality did not require all children in Quebec to be given access to publicly funded English language education; equality guarantees cannot be used to invalidate other rights expressly conferred by the Constitution including a comprehensive code for minority language education rights under s 23 of the Charter of Rights.
Full text at
http://www.canlii.org/ca/cas/scc/2005/2005scc15.html
Chou Shih Bin v HKSAR
2005 HKFCA 15
Final Court of Appeal, 15 March 2005: FAIR HEARING, PRESUMPTION OF INNOCENCE
Incorrect shifting of burden of proof by inferring accused had guilty knowledge about presence of unlicensed firearm and ammunition in bag.
Full text at
www.hklii.org/hk/jud/en/hkcfa/
2005/FACC000011_2004.html
Tsang Wai Ping v HKSAR
2005 HKFCA 16
Final Court of Appeal, 11 March 2005: PRESUMPTION OF INNOCENCE
Acquitting defendant on technicality did not justify denying him costs and could infringe presumption of innocence.
Full text at
www.hklii.org/hk/jud/en/hkcfa/
2005/FACC000012_2004.html
Lin Ping Keung v HKSAR
2005 HKFCA 11
Final Court of Appeal, 10 March 2005: FAIR HEARING
Judge's errors of fact and adverse comments in the form of rhetorical questions resulted in substantial and grave injustice requiring quashing of conviction.
Full text at
www.hklii.org/hk/jud/en/hkcfa/
2005/FACC000013_2004.html
Sun Poi Lai v Chamberlains
CA17/03
Court of Appeal, 8 March 2005: LEGAL REPRESENTATION; REMEDIES
Barristerial immunity for liability to a client for negligence in respect of acts or omissions in the conduct of a case in court or preliminary work should be abolished.
Full text at
http://www.brookers.co.nz/legal/judgments/
Morgan v Superintendent Rimutaka Prison
CA17/05
Court of Appeal, 7 March 2005: LIBERTY & SECURITY
Principle against retrospective effect of legislation giving effect to a detrimental change in the penalty for an offence, is not breached by extending parole eligibility period.
Full text at
http://www.brookers.co.nz/legal/judgments/
Edwin Brown v Attorney General
CA 39/03
Court of Appeal, 3 March 2005: FAIR HEARING
Denial of legal aid to pay for DNA testing did not result in breach of accused's fair trial rights.
Full text at
http://www.brookers.co.nz/legal/judgments/
Link Technology 2000 Ltd & Anor v Attorney General
CA191/03
Court of Appeal, 3 March 2005: REMEDIES
A finding of a breach of the Bill of Rights does not, of itself, establish liability to pay compensation since it is a discretionary remedy.
Full text at
http://www.brookers.co.nz/legal/judgments/
The Affordable Medicines & Ors v The Minister of Health of RSA & Ors
CCT 27/04
Constitutional Court, 11 March 2005: HEALTH
Licensing scheme for dispensing of drugs and medicines by doctors and dentists aimed at increasing access to safe medicines upheld.
Full text at
www.constitutionalcourt.org.za/site/
AffordableMedicines.html
Attorney General v Ramanoop
[2005] UKPC 15
Privy Council, 23 March 2005: REMEDIES
Exemplary damages could be awarded for breach of constitutional rights provisions.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/15.html
Teeluck & Anor v The State
[2005] UKPC 14
Privy Council, 23 March 2005: FAIR HEARING, LEGAL REPRESENTATION
Failure of counsel to bring out accused's good character and ensure judicial direction to that effect resulted in miscarriage of justice.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/14.html
B, R (on the application of) v Ashworth Hospital Authority
[2005] UKHL 20
House of Lords, 17 March 2005: MENTAL HEALTH; LIBERTY & SECURITY; CRUEL, INHUMAN OR DEGRADING TREATMENT
Treatment in mental hospital did not breach patient's ECHR rights; no requirement to determine compatibility of s 63 of the Mental Health Act authorising compulsory treatment of mental health patients with Human Rights Act.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/20.html
Hasan, R v
[2005] UKHL 22
House of Lords, 17 March 2005: FAIR HEARING
Principles for judicial directions on duress.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/22.html
R, R (on the application of) v Durham Constabulary & Anor
[2005] UKHL 21
House of Lords, 17 March 2005: JUVENILE JUSTICE; FAIR HEARING
Scheme for issuing warnings to a juvenile without his consent or that of parent or guardian was compatible with Article 6 of the ECHR; doubts expressed about whether the scheme was consistent with the child's rights under the international instruments.
Full text at
www.bailii.org/uk/cases/UKHL/2005/21.html
Hoxha & Anor v Home Secretary
[2005] UKHL 19
House of Lords, 10 March 2005: REFUGEES; WOMEN
Unwillingness to return based upon the continuing effects of past persecution is insufficient to amount to well-founded fear although may be relevant for determining whether there is a current fear of persecution; discussion of sexual violence as grounds for fear.
Full text at
www.bailii.org/uk/cases/UKHL/2005/19.html
Liu v Home Secretary
[2005] EWCA Civ 249
Court of Appeal, 17 March 2005: IMMIGRATION; PRIVATE AND FAMILY LIFE
Approach to be taken in determining whether the decision to remove a non- national is a disproportionate, and therefore unlawful, interference with the latter's right to respect for his private and family life.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/249.html
Taylor v Lancashire County Council & Anor
[2005] EWCA Civ 284
Court of Appeal, 17 March 2005: STANDING; EQUALITY; PROPERTY; INTERPRETATION
A declaration of incompatibility with the Human Rights Act cannot be made on grounds which do not apply to the party seeking it; statutory scheme for possession of agricultural holdings based on use of the land did not unlawfully discriminate on grounds of property or status; consideration of use of Parliamentary materials in interpreting legislation.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/284.html
Chaudhary v Specialist Training Authority Appeal Panel & Ors
[2005] EWCA Civ 282
Court of Appeal, 16 March 2005: EQUALITY; FAIR HEARING
Specialist Training Authority Appeal Panel in refusing to grant a doctor Specialist Registrar status did neither unlawfully discriminate against him on racial grounds nor breach fair trial standards.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/282.html
Price & Ors v Leeds City Council
[2005] EWCA Civ 289
Court of Appeal, 16 March 2005: HOME; PROPERTY
A defendant could not raise by way of defence to an action for an order for possession of land that it would infringe his rights under Article 8 of the ECHR where a public authority demonstrates that it has an absolute right to such possession.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/289.html
Sellick & Anor, R v
[2005] EWCA Crim 651
Court of Appeal, 14 March 2005: FAIR HEARING, EVIDENCE, EQUALITY OF ARMS
Admission and reading of witness statements from witnesses who were absent either due to fear or to an inability to trace them following reasonable steps to do so did not, by denying the accused an opportunity to examine them, breach his fair trial rights.
Full text at
www.bailii.org/ew/cases/EWCA/Crim/
2005/651.html
Bowman v Fels
[2005] EWCA Civ 226
Court of Appeal, 8 March 2005: ACCESS TO JUSTICE, LEGAL REPRESENTATION
Confidentiality of lawyer�client communications upheld in relation to statutory duty of disclosure under proceeds of crime legislation.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/226.html
Santiago v R
[2005] EWCA Crim 556
Court of Appeal, 8 March 2005: FAIR HEARING
Summary contempt proceedings were not biased.
Full text at
www.bailii.org/ew/cases/EWCA/Crim/
2005/556.html
Button & Anor, R v
[2005] EWCA Crim 516
Court of Appeal, 4 March 2005: FAIR HEARING, EVIDENCE; PRIVATE LIFE
Evidence obtained in breach of Article 8 ECHR is not inadmissible per se.
Full text at
www.bailii.org/ew/cases/EWCA/Crim/
2005/516.html
Steinberg v Pritchard Englefield & Anor
[2005] EWCA Civ 288
Court of Appeal, 3 March 2005: FAIR HEARING, LEGAL REPRESENTATION; EXPRESSION
No general requirement to provide legal aid to libel defendants.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/288.html
SB, R (on the application of) v Denbigh High School
[2005] EWCA Civ 199
Court of Appeal, 2 March 2005: RELIGION; EDUCATION; EQUALITY
School's uniform requirements failed to give sufficient weight to Muslim pupil's religious rights thereby resulting in her unlawful exclusion and denial of access to education.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/199.html
Corner House Research, R (on the application of) v Secretary of State for Trade and Industry
[2005] EWCA Civ 192
Court of Appeal, 1 March 2005: ACCESS TO JUSTICE
Extensive discussion of principles for awarding costs in public interest litigation.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/
2005/192.html
Huang & Ors v Home Secretary
[2005] EWCA Civ 105
Court of Appeal, 1 March 2005: IMMIGRATION; PRIVATE AND FAMILY LIFE
Approach to be taken in determining whether the decision to remove a non- national is a disproportionate, and therefore unlawful, interference with the latter's right to respect for his private and family life.
Full text at
www.bailii.org/ew/cases/EWCA/
Civ/2005/105.html
City of Sherrill , New York v Oneida Indian Nation of New York & Ors
03-855
Supreme Court, 29 March 2005: INDIGENOUS PEOPLE; LAND
Indian tribe precluded from reviving historic land claims.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Jackson v Birmingham Board of Education
02-1672
Supreme Court, 29 March 2005: EQUALITY
Retaliation against a sex discrimination complainant can constitute intentional discrimination on the basis of sex where retaliation is because of complaint.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Muehler & Ors v Mena
03-1423
Supreme Court, 22 March 2005: LIBERTY & SECURITY
Handcuffing during search of premises was reasonable to minimise harm to police officers and others; questioning about immigration status during search permitted.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Wilkinson v Dotson & Ors
03-287
Supreme Court, 22 March 2005: LIBERTY & SECURITY; REMEDIES
State prisoners could bring an action for declaratory and injunctive relief challenging the constitutionality of state parole procedures rather than seeking relief exclusively under habeas corpus.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Roper v Simmons
03-633
Supreme Court, 1 March 2005: DEATH PENALTY; CHILDREN; CRUEL, INHUMAN AND DEGRADING PUNISHMENT
Death penalty should not be imposed on offenders under 18.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
February 2005
Last updated 1 March 2005.
Kamleh v The Queen
[2005] HCA 2
High Court, 3 February 2005: FAIR HEARING; EVIDENCE
Evidence of out-of-court statements adduced to prove criminal intention was admissible.
Full text at
www.austlii.edu.au/au/cases/cth/HCA/
2005/2.html
Nicholls v The Queen; Coates v The Queen
[2005] HCA 1
High Court, 3 February 2005: FAIR HEARING; EVIDENCE; BIAS
Admissibility of prior inconsistent statements allegedly made by witness off-video during police interview as exception to rule against admission of collateral statements.
Full text at
www.austlii.edu.au/au/cases/cth/
HCA/2005/1.html
Applicants A104 of 2003 v Minister for Immigration and Multicultural & Indigenous Affairs
[2005] FCAFC 19
Federal Court, 25 February 2005: REFUGEES
No evidence to suggest that alleged persecuted social group �known friends of militants' existed in Punjab; doubtful whether such an entity could constitute a social group for purposes of the 1951 Convention.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/19.html
Minister for Immigration and Multicultural & Indigenous Affairs v Lorenzo
[2005] FCAFC 13
Federal Court, 22 February 2005: MIGRATION; CHILDREN
Best interests of child must be primary consideration when cancelling parent's visa.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/13.html
Minister for Immigration and Multicultural & Indigenous Affairs v SVBB
[2005] FCAFC 12
Federal Court, 22 February 2005: REFUGEES
Family blood feud did not qualify as a legitimate ground for fear of persecution under 1951 Convention.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2005/12.html
R v Decorte
[2005] SCC 9
Supreme Court, 25 February 2005: LIBERTY & SECURITY; INDIGENOUS PEOPLE
Indigenous constables enjoyed the same powers as police officers in carrying out specified duties, including conducting breath tests; jurisdiction not limited to reserve territories enabling lawful arrest and detention at a road block on the outskirts.
Full text at
www.canlii.org/ca/cas/scc/2005/2005scc9.html
R v Krymowski
[2005] SCC 7
Supreme Court, 24 February 2005: FREE EXPRESSION; MINORITIES
Statutory offence of wilful promotion of hatred against Roma covered �gypsies'.
Full text at
http://www.canlii.org/ca/cas/scc/2005/2005scc7.html
Gorgiev v Minister of Human Resources Development
[2005] FCA 55
Federal Court of Appeal, 17 February 2005: FAIR HEARING; BIAS
Disclosure of rejected settlement offer by Disability Pensions Appeal Board did not result in a reasonable apprehension of bias against claimant.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca55.html
Almrei v Minister of Citizenship and Immigration
[2005] FCA 54
Federal Court of Appeal, 8 February 2005: LIBERTY & SECURITY; CRUEL, INHUMAN OR DEGRADING TREATMENT
Consideration of detention of non-national under security legislation with reference to recent UK and US decisions.
Full text at
http://www.canlii.org/ca/cas/fca/2005/2005fca54.html
Balson v The State
[2005] UKPC 2
Privy Council, 2 February 2005: DEATH PENALTY; CRUEL, INHUMAN OR DEGRADING TREATMENT
Mandatory death penalty for murder constituted inhuman or degrading punishment or treatment.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/2.html
Independent Jamaica Council for Human Rights (1998) Ltd & Ors v Marshall-Burnett & Anor (Jamaica)
[2005] UKPC 3
Privy Council, 3 February 2005: CONSTITUTIONALITY
Parliament altering right of appeal from Privy Council to Caribbean Court of Justice failed to adopt correct legislative procedures required for amending special constitutional provisions.
Full text at
http://www.bailii.org/uk/cases/UKPC/2005/3.html
Volks NO v Robinson & Ors
CCT 12/04
Constitutional Court, 21 February 2005: EQUALITY; MARRIAGE; DIGNITY
Different treatment of permanent life partners compared to married spouses concerning maintenance after death was justified on grounds that marriage entails different rights and obligations.
Full text at
http://www.constitutionalcourt.org.za/site/home.htm
Jaipal v The State
CCT 21/04
Constitutional Court, 18 February 2005: FAIR HEARING; BIAS
Presence of prosecutor, investigating officer, state witness and two presiding judicial assessors in the same office due to lack of space, whilst irregular, did not, in the particular circumstances of the case, result in an unfair trial although it had the potential to do so.
Full text at
http://www.constitutionalcourt.org.za/site/home.htm
Williamson & Ors, R (on the application of) v Secretary of State for Employment & Ors
[2005] UKHL 15
House of Lords, 24 February 2005: CHILDREN; CORPORAL PUNISHMENT; RELIGION; EDUCATION
Ban on corporal punishment did not violate religious rights of head teachers, teachers and parents of children at independent schools.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/15.html
Al-Hasan, R (on the application of) v Home Secretary
[2005] UKHL 13
House of Lords, 16 February 2005: FAIR HEARING; BIAS; PRISONERS
Adjudicator's prior involvement in and lack of dissent concerning the approval of a squat search of a prisoner could lead to reasonable apprehension of bias in relation to his subsequent determination of a challenge to the order.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/13.html
Greenfield, R (on the application of) v Home Secretary
[2005] UKHL 14
House of Lords, 16 February 2005: FAIR HEARING; PRISONERS; REMEDIES
Prisoner facing a criminal charge was wrongly denied legal representation by a Private Prison Deputy Controller who was not an independent and impartial tribunal for the purposes of Article 6 of the ECHR; consideration of damages for breach.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/14.html
Polanski v Conde Nast Publications Ltd
[2005] UKHL 10
House of Lords, 10 February 2005: FAIR HEARING, EVIDENCE; EXPRESSION
Plaintiff in libel action who was unable to travel to give oral evidence due to threat of extradition was entitled to give evidence via video link.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/10.html
Saggar, Re
[2005] EWCA Civ 174
Court of Appeal, 24 February 2005: FAIR HEARING, DELAY
Consideration of reasonable time in context of whether alleged delay by Customs in seeking to reopen a defendant's confiscation order, so as to increase the �amount which might be realised' under it, breached Article 6(1) of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/174.html
Nunn, R (on the application of) v First Secretary of State & Ors
[2005] EWCA Civ 101
Court of Appeal, 8 February 2005: FAIR HEARING
Incompetent operation of local planning scheme did not affect its legality for the purposes of Article 6 of the ECHR; application for judicial review of planning inspector's decision to quash enforcement notices against mobile phone company for relocation of masts denied.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/101.html
Brunt & Ors v Southampton International Airport
[2005] EWCA Civ 93
Court of Appeal, 7 February 2005: EQUALITY; PROPERTY
Process for filtering out claims for compensation for aircraft noise did not constitute unfair discrimination; property rights did not entitle residents living near airports to compensation.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/93.html
Mlauzi v Home Secretary
[2005] EWCA Civ 128
Court of Appeal, 7 February 2005: REFUGEES; CRUEL, INHUMAN OR DEGRADING TREATMENT
Zimbabwean opposition supporter granted asylum on grounds that she was at risk of persecution throughout country beyond her own locality.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/128.html
Inland Revenue & Anor v Deutsche Morgen Grenfell Group plc
[2005] EWCA Civ 78
Court of Appeal, 4 February 2005: FAIR HEARING; PROPERTY
Restitution proceedings for taxes paid under regulations later declared invalid involved the determination of the applicant's civil rights within the meaning of Article 6(1) of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/78.html
Dow Jones Co Inc v Jameel
[2005] EWCA Civ 75
Court of Appeal, 3 February 2005: EXPRESSION; REMEDIES
Presumption of damage in libel law is not incompatible with the right to free expression.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/75.html
Jameel & Anor v Wall Street Journal Europe Sprl (No 2)
[2005] EWCA Civ 74
Court of Appeal, 3 February 2005: EXPRESSION
Presumption of falsity once defamation is proved does not breach right to free expression; consideration of test for satisfying Reynolds defence of qualified privilege.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/74.html
Momodou, R v
[2005] EWCA Crim 177
Court of Appeal, 2 February 2005: FAIR HEARING
Exercise of the trial judge's discretion to discharge an individual juror or the entire jury for impropriety, requires him to address the question whether impropriety has in fact occurred, and if it has, whether it can be cured, and if so how, or whether it is irremediable.
Full text at
http://www.bailii.org/ew/cases/EWCA/Crim/2005/177.html
B v Home Secretary
[2005] EWCA Civ 61
Court of Appeal, 1 February 2005: REFUGEES; RAPE; CRUEL, INHUMAN OR DEGRADING TREATMENT; MENTAL HEALTH
Risk of psychiatric injury insufficient to give rise to a well founded fear of persecution under 1951 Convention; risk of rape will only give rise where state agent is implicated; severity of risk required to engage Article 3 of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/61.html
Johnson v California
03-636
Supreme Court, 23 February 2005: PRISONERS; EQUALITY
Strict scrutiny based on consideration of individual cases required in justifying racial segregation of prisoners.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Smith v Massachusetts
03-8661
Supreme Court, 22 February 2005: FAIR HEARING, DOUBLE JEOPARDY
Reversing a not guilty finding mid-trial following an earlier withdrawl of the charge by the prosecution and resubmitting it to the jury breached the double jeopardy rule.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
January 2005
Last updated 8 February 2005.
R v Grandinetti
2005 SCC 5
Supreme Court, 27 January 2005: FAIR HEARING; EVIDENCE
Statements made by the accused to undercover police officers were inadmissible as not being made voluntarily to �persons in authority'.
Full text at
http://www.canlii.org/ca/cas/scc/2005/2005scc5.html
Ng Yat Chi v Max Share Ltd & Anor
[2005] HKCFA 7
Court of Final Appeal, 20 January 2005: ACCESS TO JUSTICE
Principles governing abuse of process by vexatious litigants.
Full text at
www.hklii.org/hk/jud/en/hkcfa/2005/
FACV000005_2004.html
Shervin Emmanuel v The Commissioner of Correction
[2004] HCV 1055
Supreme Court, 19 October 2004: EXTRADITION; EVIDENCE
Extradition hearing complied with evidentiary and due process rules.
Full text at
http://www.sc.gov.jm/Judgments/htmfiles/sc2004.htm
D (a minor), R (on the application of) v Camberwell Green Youth Court
[2005] UKHL 4
House of Lords, 27 January 2005: FAIR HEARING; EVIDENCE; CHILDREN
New scheme governing evidence by child witnesses in criminal cases was compatible with Article 6 ECHR.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/4.html
Gregg v Scott
[2005] UKHL 2
House of Lords, 27 January 2005: HEALTH; REMEDIES
Availability of remedies in medical negligence cases.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/2.html
Smith (R) on the application of the Parole Board
[2005] UKHL 1
House of Lords, 27 January 2005: LIBERTY & SECURITY; PRISONERS; FAIR HEARING; EQUALITY OF ARMS
Prisoners had right to oral hearing when seeking to resist revocation of their parole licence.
Full text at
http://www.bailii.org/uk/cases/UKHL/2005/1.html
Bangs v Connex South Eastern Ltd.
[2005] EWCA Civ 14
Court of Appeal, 27 January 2005: FAIR HEARING; DELAY; APPEAL; WORK
Principles governing an appeal from an employment tribunal on grounds of unreasonable delay. Unreasonable delay, whilst it can be a breach of the right to a fair hearing, is a matter of fact and not law and as such does not constitute an independent ground of appeal.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/14.html
ID & Ors v Home Office
[2005] EWCA Civ 38
Court of Appeal, 27 January 2005: LIBERTY & SECURITY; ACCESS TO JUSTICE; REMEDIES; CRUEL, INHUMAN AND DEGRADING TREATMENT; LIFE; FAMILY LIFE; REFUGEES
Roma family had right to bring claim for false imprisonment and for breaches of Articles 2, 3, 5 and 8 ECHR following continuing detention by immigration authorities.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2005/38.html
Clark v Martinez
03-878
Supreme Court, 12 January 2005: LIBERTY & SECURITY; DEPORTATION
Authorities could only detain non nationals due to be deported beyond the maximum 90 days period for only as long as it was reasonably necessary to achieve removal; same rules should be applied to all subjects regardless of their status.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
December 2004
Last updated 4 January 2005.
De Bruyn v Minister of Justice and Customs
[2004] FCAFC 334
Federal Court of Appeal, 22 December 2004: EXTRADITION; LIFE; HEALTH; CRUEL TREATMENT
Whether surrender of detainee to South African authorities would be unjust, oppressive or incompatible with humanitarian considerations due to risk of contracting HIV/AIDS in prison; whether prison conditions in the requesting country should be excluded from consideration.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2004/334.html
NALZ v Minister for Immigration
[2004] FCAFC 320
Federal Court of Appeal, 2 December 2004: REFUGEES
Whether asylum-seekers required or expected to modify behaviour or take reasonable steps to avoid persecution; whether there is a distinction between actual and imputed membership of a protected class of citizens under the Refugee Convention.
Full text at
www.austlii.edu.au/au/cases/cth/
FCAFC/2004/320.html
BHP Billiton Ltd v Schultz
[2004] HCA 61
High Court, 7 December 2004: ACCESS TO JUSTICE; HEALTH
Whether claim for compensation following exposure to asbestos should be transferred to forum of state where alleged wrongdoing occurred in interests of justice.
Full text at
www.austlii.edu.au/au/cases/cth/HCA/2004/61.html
Griffiths & Ors v The Queen
[2004] UKPC 58
Privy Council, 16 December 2004: DUE PROCESS; DEATH PENALTY
Constitutionality of common law felony murder rule; consideration of imposition of mandatory death penalty.
Full text at
www.bailii.org/uk/cases/UKPC/2004/58.html
Martineau v MMR
2004 SCC 81
Supreme Court, 16 December 2004: SELF-INCRIMINATION
Whether motion for discovery by customs violated defendant's right to protection against self-incrimination.
Full text at
www.canlii.org/ca/cas/scc/2004/2004scc81.html
Reference re Same-Sex Marriage
2004 SCC 79
Supreme Court, 9 December 2004: EQUALITY; SEXUALITY; RELIGION
Proposed federal legislation extending right to civil marriage to same-sex couples was consistent with guarantees of equality rights and freedom of religion.
Full text at
www.canlii.org/ca/cas/scc/2004/2004scc79.html
Zaoui v Attorney General & Ors
SC CIV 13/2004
Supreme Court, 9 December 2004: LIBERTY & SECURITY; REFUGEES
Refugee detained under security legislation granted bail.
Full text at
http://www.justice.govt.nz/judgments/
DPP, Cape of Good Hope v Robinson
CCT 15/04
Constitutional Court, 2 December 2004: EXTRADITION; FAIR HEARING
Responsibility of minister and not extraditing magistrate to take into account the fact that detainee if extradited would serve a sentence imposed in his absence thereby breaching his fair trial rights.
Full text at
www.concourt.gov.za/summary.php?case_id=12841
A & Ors v Secretary of State for the Home Department
[2004] UKHL 56
House of Lords, 16 December 2004: LIBERTY & SECURITY; EQUALITY
Indefinite detention of non nationals without charge or trial under anti-terror legislation was disproportionate and discriminatory contrary to Articles 5 and 14 of the ECHR; quashing of order derogating from Article 5.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/56.html
European Roma Rights Centre & Ors, R (on the application of) v Immigration Officer at Prague Airport & Anor
[2004] UKHL 55
House of Lords, 9 December 2004: EQUALITY; REFUGEES
Procedure empowering British immigration officers to grant or refuse leave to enter the UK to passengers at Prague airport prior to departure systematically discriminated against Roma; no breach of Refugee Convention.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/55.html
Malcolm v Mackenzie & Ors
[2004] EWCA Civ 1748
Court of Appeal, 21 December 2004: EQUALITY; PROPERTY
Whether differential treatment in relation to pension rights following bankruptcy between self-employed and employed persons amounted to unlawful discrimination.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1748.html
Nail & Ors v News Group Newspapers Ltd
[2004] EWCA Civ 1708
Court of Appeal, 20 December 2004: EXPRESSION; REMEDIES
Discussion on quantum of damages following successful defamation action; extent to which the making of the offer of amends should go in mitigation of the amount of compensation.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1708.html
Gezer v Secretary of State for the Home Department
[2004] EWCA Civ 1730
Court of Appeal, 17 December 2004: CRUEL AND INHUMAN TREATMENT; ASYLUM
Consideration of the extent to which an asylum dispersal system could result in breaches of Article 3 of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1730.html
M, R (on the application of) v Immigration Appeal Tribunal & Anor
[2004] EWCA Civ 1731
Court of Appeal, 16 December 2004: ACCESS TO JUSTICE; EQUALITY; ASYLUM
Discretionary denial of judicial review of immigration tribunal decisions to those seeking asylum did not constitute unjustified discrimination.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1731.html
Clays Lane Housing Cooperative Ltd, R (on the application of) v Housing Corporation
[2004] EWCA Civ 1658
Court of Appeal, 8 December 2004: PROPERTY; ASSOCIATION
Compulsory transfer of housing stock from a housing cooperative to another body following mismanagement did not amount to unlawful interference with either its right to property or freedom of association.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1658.html
Laporte, R (on the application of) v Glos Constabulary & Ors
[2004] EWCA Civ 1639
Court of Appeal, 8 December 2004: EXPRESSION; ASSEMBLY
Consideration of police powers in relation to demonstrations.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1639.html
Z v Secretary of State for the Home Department
[2004] EWCA Civ 1578
Court of Appeal, 2 December 2004: REFUGEES; SEXUALITY; CRUEL & INHUMAN TREATMENT; PRIVATE LIFE
Consideration of asylum claim of Zimbabwean claiming persecution on grounds of his sexuality.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1578.html
Al Skeini & Ors, R (on the application of) v Secretary of State for Defence
[2004] EWHC 2911 (Admin)
High Court, 14 December 2004: LIFE; JURISDICTION
Failure to adequately investigate death of Iraqi in British military custody breached UK's obligations under the ECHR; British run prisons in foreign territory subject to ECHR jurisdiction.
Full text at
www.bailii.org/ew/cases/EWHC/Admin/2004/2911.html
Devenpeck et al v Alford
03-710
Supreme Court, 13 December 2004: LIBERTY & SECURITY
Warrantless arrest can be justified where police officer, based on the facts known to him, had probable cause to believe that a crime had been or was being committed.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
Florida v Nixon
03-931
Supreme Court, 13 December 2004: DEATH PENALTY; FAIR HEARING; LEGAL REPRESENTATION
Lawyer's failure to obtain the defendant's express consent to a strategy of conceding guilty in a capital murder case did not automatically render the representation ineffective in order to warrant a new trial.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
November 2004
Last updated 1 December 2004.
SZAOG v Minister for Immigration and Multicultural Affairs
[2004] FCAFC 316
Federal Court, 26 November 2004: REFUGEES; CONSCIENCE
Conscientious objection to military service must have a political or religious basis for claimant to come within scope of Refugee Convention.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2004/316.html
Auton (Guardian ad litem of) v British Columbia (Attorney General)
[2004] SCC 78
Supreme Court, 19 November 2004: EQUALITY; DISABILITY; MENTAL HEALTH; CHILDREN
Failure to fund therapy treatment for autistic children did not amount to discrimination nor breach their right to life, liberty and security.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc78.html
Ha�da Nation v British Columbia (Minister of Forests); Taku River Tlingit First Nation v British Columbia (Project Assessment Director)
[2004] SCC 73; [2004] SCC 74
Supreme Court, 18 November 2004: INDIGENOUS PEOPLE; PARTICIPATION; LAND RIGHTS
State under a duty to consult and accommodate indigenous people prior to making decisions that might adversely effect their as yet unproven rights and title claims. Whilst this duty does not extend to and cannot be delegated to third parties, such as private business, this does not amount to an abrogation of the latter's potential liability to indigenous people.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc73.html and http://www.canlii.org/ca/cas/scc/2004/2004scc74.html
Ahmed Zaoui v The Attorney General & Ors
SC CIV 13/2004
Supreme Court, 25 November 2004: LIBERTY & SECURITY; REFUGEES
Refugee detained under security legislation entitled under the common law to be granted bail in accordance with Refugee Convention pending determination of security certificate.
Full text at
http://www.justice.govt.nz/judgments/
Hemmes v Young
CA 33/04
Court of Appeal, 26 November 2004: CHILDREN; ADOPTION; RIGHT TO INFORMATION; EQUALITY
Whilst adopted children do not yet possess a universally recognised right to know their biological parents (although the trend is in this direction) they should not be prevented from bringing proceedings against a third party to establish that they are their parents; legislative scheme regulating paternity declarations should not discriminate against adopted children.
Full text at
http://www.justice.govt.nz/judgments/
Rail Commuters Action Group & Ors v Transnet Ltd t/a Metrorail
CCT 56/03
Constitutional Court, 26 November 2004: LIFE; LIBERTY & SECURITY
State under a positive duty to take reasonable steps to provide for the security of rail commuters.
Full text at
http://www.concourt.gov.za/summary.php?case_id=12840
Three Rivers District Council & Ors v Bank of England
[2004] UKHL 48
House of Lords, 11 November 2004: DISCLOSURE
Legal advice privilege should be given a wide scope to include not only legal rights and obligations but also 'presentational' assistance in putting relevant factual material before a judicial inquiry in an orderly and attractive fashion; in cases of doubt an objective test should be applied as to whether the advice relates to the "rights, liabilities, obligations or remedies of the client either under private law or under public law".
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/48.html
Al Fayed & Ors v Metropolitan Police Commissioner
[2004] EWCA Civ 1579
Court of Appeal, 25 November 2004: LIBERTY & SECURITY
Claim for wrongful arrest and false imprisonment dismissed following compliance of police with both Wednesbury reasonableness and ECHR principles for arresting and detention of suspects for questioning.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1579.html
Nilsen v HM Prison Full Sutton & Anor
[2004] EWCA Civ 1540
Court of Appeal, 17 November 2004: PRISONERS; EXPRESSION
Preventing serial killer serving life imprisonment from publishing his autobiography was justified as being necessary in a democratic society in accordance with Article 10(2) of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1540.html
The Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department
[2004] EWCA Civ 1481
Court of Appeal, 12 November 2004: REFUGEES; FAIR HEARING
Fast track system of asylum adjudication at detention centre was not inherently unfair provided it operated a flexible timetabling of decision-making.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1481.html
Kent Pharmaceuticals Ltd, R (on the application of) v Serious Fraud Office & Ors
[2004] EWCA Civ 1494
Court of Appeal, 11 November 2004: DISCLOSURE
Disclosure by Serious Fraud Office to Department of Health of certain documents seized from pharmaceutical company was in compliance with the law as required by Article 8(2) of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1494.html
Greene v Associated Newspapers Ltd
[2004] EWCA Civ 1462
Court of Appeal, 5 November 2004: EXPRESSION; PRIVACY
Principles governing prior restraint in defamation cases; freedom of the press to report in public interest outweighed claimant's reputation rights under Article 8 of the ECHR where no direct matters of privacy or confidentiality are raised.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1462.html
L (China) v Secretary of State for the Home Department
[2004] EWCA Civ 1441
Court of Appeal, 3 November 2004: REFUGEES; RELIGION
Tribunal erred in dismissing refugee application by Falun Gung member when it failed to appreciate that she would continue her activities upon return to China; insufficient evidence to demonstrate that Falun Gung amounts to a religion for the purposes of the Refugee Convention.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1441.html
Bennett v A & Anor, Officers & Ors
[2004] EWCA Civ 1439
Court of Appeal, 2 November 2004: LIFE; LIBERTY & SECURITY; ACCESS TO JUSTICE
Police officers entitled to anonymity when giving evidence to inquest where they had genuine fears for their safety which outweighed interests of victim's family.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1439.html
Smith v Texas
543 US (2004)
Supreme Court, 15 November 2004: DEATH PENALTY
In directing the jury to give effect to mitigation evidence in determining sentence, a judge should not at the same time state that it is only on condition that they give negative instead of positive responses to whether the act was deliberate and whether the accused would be a danger to society in the future.
Full text at
www.supremecourtus.gov/opinions/
04slipopinion.html
October 2004
Last updated 1 November 2004.
JMA Accounting Pty Ltd v Commissioner of Taxation
[2004] FCFCA 274
Federal Court of Appeal (Full Court), 14 October 2004: SEARCH & SEIZURE Copying of privileged document without reading did not breach legal professional privilege; failure to distinguish between irrelevant and relevant documents before downloading them from computer constituted unreasonable search and seizure.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2004/274.html
STCB v Minister for Immigration and Multicultural Affairs
[2004] FCFCA 266
Federal Court of Appeal (Full Court), 6 October 2004 : REFUGEES
Claim that persecution arose because of membership of a particular social group comprised of citizens who were subject to the same customary law code failed in absence of a common element that made the group a cognisable one within Albanian society.
Full text at
www.austlii.edu.au/au/cases/cth/FCAFC/2004/266.html
Bernard v Attorney General
[2004] UKPC 47
Privy Council, 7 October 2004: REMEDIES; LIFE
State was vicariously liable for unlawful shooting by police constable where officers were routinely permitted to take loaded guns home and carry them while off duty.
Full text at
www.bailii.org/uk/cases/UKPC/2004/47.html
Dosoruth v Mauritius
[2004] UKPC 51
Privy Council, 21 October 2004: FAIR HEARING; APPEAL
Appellate court justified in not admitting new evidence on appeal against conviction in absence of request from appellant for retrial due to serious irregularity.
Full text at
www.bailii.org/uk/cases/UKPC/2004/51.html
The Queen v Siang Lim
CA 173/04
Court of Appeal, 8 October 2004: FAIR HEARING; DELAY; DISCLOSURE
16 month delay between charge and trial due to lack of disclosure was not unreasonable where the Crown did not have possession of the documents and could not compel disclosure from an un-cooperative third party.
Full text at
http://www.brookers.co.nz
The Queen v Thomas Wiremu Morgan
CA 261/04
Court of Appeal, 18 October 2004: FAIR HEARING; DOUBLE JEOPARDY
Principle of double jeopardy infringed by subjecting the accused to two separate counts of (1) intent to cause grievous bodily harm and wounding and (2) assault and in so doing using a knife as a weapon where the subject of count (1) constituted concurrently the factual basis for count (2) and the latter was simply a less serious form of the former.
Full text at
http://www.brookers.co.nz
Bhe v Magistrate, Khayelitsha & Ors
Case CCT 49/03
Constitutional Court, 15 October 2004: EQUALITY; DIGNITY; PROPERTY
Customary law of succession favouring males breached constitutional rights to equality and dignity.
Full text at
www.concourt.gov.za/judgment.php?case_id=12718
Zondi v Member of the Executive Council for Traditional and Local Government Affairs
Case CCT 73/03
Constitutional Court, 15 October 2004: EQUALITY; ACCESS TO JUSTICE; PROPERTY
Scheme which empowered landowners to seize and impound livestock found trespassing on their land and for them to be sold without a court order lacked due process and unfairly discriminated against landless black people.
Full text at
www.concourt.gov.za/judgment.php?case_id=12724
Jaftha v Schoeman & Ors
Case CCT 74/03
Constitutional Court, 8 October 2004: HOUSING
Process of execution against immovable property for debtors was unconstitutional where it permitted a person's home to be sold thereby disqualifying them from state-subsidised housing and placing them at risk of homelessness.
Full text at
www.concourt.gov.za/judgment.php?case_id=12912
Mkontwana v Nelson Mandela Metropolitan Municipality
Case CCT 57/03
Constitutional Court, 6 October 2004: PROPERTY; HOUSING; EQUALITY
Preclusion of transfer of all immovable property until outstanding water and electricity charges had been paid did not constitute arbitrary deprivation nor infringement of the rights to equality or access to housing.
Full text at
www.concourt.gov.za/judgment.php?case_id=12721
Mabaso v Law Society of the Northern Provinces
Case CCT 76/03
Constitutional Court, 5 October 2004: EQUALITY; WORK
Shortcut route for enrolment for attorneys admitted under legislation applying in the former Republic of South Africa unfairly discriminated against those admitted in the former �homelands'.
Full text at
www.concourt.gov.za/judgment.php?case_id=12796
Port Elizabeth Municipal Authority v Various Occupiers
Case CCT 53/03
Constitutional Court, 1 October 2004: HOUSING
Unjust and inequitable to grant eviction orders against 68 people living in shacks on privately owned land in the absence of taking all reasonable steps prior to making the order to secure suitable alternative accommodation.
Full text at
www.concourt.gov.za/judgment.php?case_id=12900
S (a child), Re
[2004] UKHL 47
House of Lords, 28 October 2004: PRIVACY; FREE EXPRESSION
Application for injunction restraining the publication by newspapers of the identity of a defendant in a murder trial denied where it had been intended to protect the privacy of her son who was not involved in the criminal proceedings.
Full text at
www.bailii.org/uk/cases/UKHL/2004/47.html
Sheldrake v Director of Public Prosecutions
[2004] UKHL 43
House of Lords, 28 October 2004: PRESUMPTION OF INNOCENCE
Reversing the burden of proof on a defendant in a road traffic accident held not incompatible with the presumption of innocence guaranteed by Article 6 of the ECHR.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/43.html
Attorney General's Reference No 5 of 2002
[2004] UKHL 40
House of Lords, 14 October 2004: PRIVACY
A court may properly enquire whether intercepted material relied on by the prosecution was obtained by tapping a private as opposed to a public telecommunications system. If the court concludes that it was public, that is the end of the enquiry. If the court concludes that it was private but unlawful, that also will be the end of the enquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/40.html
Cream Holdings Ltd & Ors v Bannerjee & Ors
[2004] UKHL 44
House of Lords, 14 October 2004: FREE EXPRESSION
In public interest to permit publication of certain confidential documents alleging corruption in business prior to trial given that the latter's prospects of success at trial were not sufficiently likely to justify making an interim restraint order.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/44.html
Jones v Ministry of Interior Kingdom of Saudi Arabia
[2004] EWCA 1394
Court of Appeal, 28 October 2004: TORTURE; REMEDIES; JURISDICTION
Foreign state agents not immune from civil proceedings brought in UK in respect of alleged acts of torture committed by them against British nationals; state immunity confirmed; issue of jurisdiction left open.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2004/1394.html
Szuluk, R (on the application of) v HMP Full Sutton & Anor
[2004] EWCA Civ 1426
Court of Appeal, 29 October 2004: PRIVACY; PRISONERS
Limited interference with high security prisoner's correspondence justified on security grounds.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2004/1426.html
Coates & Ors v South Bucks DC
[2004] EWCA Civ 1378
Court of Appeal, 22 October 2004: HOUSING; FAMILY LIFE
Reasonable in the interests of maintaining the planning regime to enforce eviction notice against travellers living on a sensitive greenbelt site and in breach of several previous court orders.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2004/1378.html
B & Ors, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs
[2004] EWCA Civ 1344
Court of Appeal, 18 October 2004: REFUGEES; CRUEL AND INHUMAN TREATMENT; JURISDICTION
Diplomatic or consular officials were under a duty to grant 'diplomatic asylum' to fugitives where they were at risk of cruel and inhuman treatment.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2004/1344.html
First Secretary of State & Ors v Chichester District Council
[2004] EWCA Civ 1248
Court of Appeal, 29 September 2004: HOUSING; FAMILY LIFE
Planning Inspector did not breach travellers' Article 8 ECHR rights by refusing planning permission and issuing enforcement proceedings against them.
Full text at
www.bailii.org/ew/cases/EWCA/Civ/2004/1248.html
G, R (on the application of) v Mental Health Review Tribunal
[2004] EWHC 2193
High Court, 7 October 2004: LIBERTY & SECURITY; MENTAL HEALTH
Condition of residence at a private sector psychiatric hospital prior to conditional discharge amounted to a deprivation of liberty within the meaning of Article 5 of the ECHR.
Full text at
www.bailii.org/ew/cases/EWHC/Admin/2004/2193.html
Khan v Royal Air Force Summary Appeal Court
[2004] EWHC 2230
High Court, 7 October 2004: RELIGION; CONSCIENCE
Muslim who went AWOL from the air force prior to the Iraq war could not claim a right to conscientious objection on the grounds of his religion.
Full text at
www.bailii.org/ew/cases/EWHC/Admin/2004/2230.html
Morris, R (on the application of) v Westminster City Council & Anor
[2004] EWHC 2191
High Court, 7 October 2004: FAMILY LIFE; EQUALITY
Council's refusal to provide accommodation as a matter of priority to homeless mother and child on ground of child's immigration status amounted to infringement of claimant's right to respect for family life without discrimination under Articles 8 and 14 of the ECHR.
Full text at
www.bailii.org/ew/cases/EWHC/Admin/2004/2191.html
Portsmouth NHS Trust v Wyatt & Ors
[2004] EWHC 2247 (Fam)
High Court, 7 October 2004: LIFE; CHILDREN
In terminally ill baby's best interests to permit medical staff to determine whether her life support should be terminated to end her suffering.
Full text at
www.bailii.org/ew/cases/EWHC/Fam/2004/2247.html
August/September 2004
Last updated 1 October 2004.
Al-Kateb v Godwin
[2004] HCA 37
High Court, 6 August 2004: LIBERTY AND SECURITY; EQUALITY; NATIONALITY
Whether detention of illegal non-citizen pending removal is lawful under statute where there is no real prospect of removal in reasonably foreseeable future; whether provision for indefinite detention infringes constitution.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html
Behrooz v Secretary of the Department for Immigration and Multicultural and Indigenous Affairs
[2004] HCA 36
High Court, 6 August 2004: LIBERTY AND SECURITY; CRUEL, INHUMAN AND DEGRADING TREATMENT
Whether detention under harsh and inhumane conditions at detention centre was authorised by statute.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/36.html
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji
[2004] HCA 38
High Court, 6 August 2004: LIBERTY AND SECURITY; EQUALITY; NATIONALITY; SEPARATION OF POWERS
Whether provision for indefinite detention of non-national pending removal infringes constitution; whether detention amounts to an exercise of judicial power by the executive.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/38.html
Singh v Commonwealth of Australia
[2004] HCA 43
High Court, 9 September 2004: NATIONALITY; MOVEMENT; EQUALITY
Whether non-citizenship permitted removal of non-alien.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/43.html
Durgo Bai v State of Punjab
Appeal (Crim) 1143-1144 of 2003
Supreme Court, 10 August 2004: SEARCH & SEIZURE
Legality of search and seizure of drugs.
Full text at
demotemp119.nic.in/supremecourt/qrydisp.asp?tfnm=26281
Zutshi & Anor v Debnath & Anor
Appeal (Crim) 30 of 1999
Supreme Court, 10 August 2004: SEARCH & SEIZURE
Legality of search and seizure of premises by customs.
Full text at
demotemp119.nic.in/supremecourt/qrydisp.asp?tfnm=26303
Television New Zealand v Attorney General
CA 169/04
Court of Appeal, 17 September 2004: FREE EXPRESSION
Refusal of authorities to allow TV station to interview illegal immigrant detained for security of reasons breached latter's right to free speech.
Full text at
http://www.brookers.co.nz
Zaoui v Attorney General & Anor
CA 166/04
Court of Appeal, 17 September 2004: LIBERTY & SECURITY; REFUGEES
Refugee lawfully detained on security grounds.
Full text at
http://www.brookers.co.nz
Mashavha v President of the Republic & Ors
Case CCT 67/03
Constitutional Court, 6 September 2004: SOCIAL SECURITY; EQUALITY
Social assistance scheme should be applied uniformly across the country in order to protect against discrimination.
Full text at
http://www.concourt.gov.za/files/6703/mashavha.pdf
Kaunda & Ors v President of the Republic & Ors
Case CCT 23/04
Constitutional Court, 4 August 2004: DEATH PENALTY; LIBERTY AND SECURITY; CRUEL, INHUMAN AND DEGRADING TREATMENT; FAIR HEARING; EXTRADITION
Extent of state's constitutional obligation to protect citizens on trial abroad at risk of ill treatment whilst in detention, receiving an unfair hearing and being subjected to the death penalty.
Full text at
http://www.concourt.gov.za/files/kaunda.pdf
Uttley, R (on the application of) v Secretary of State for the Home Department
[2004] UKHL 38
House of Lords, 30 July 2004: RETROACTIVITY
No breach of Art 7(1) of the ECHR where there was no change in the relevant penalties during the 12 years between commission of the offences and trial and sentencing, but merely the arrangements for the prisoner's early release on licence.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/38.html
Rutherford & Anor v Secretary of State for Trade and Industry
[2004] EWCA Civ 1186
Court of Appeal, 3 September 2004: EQUALITY; WORK
Age limit on claiming rights to unfair dismissal and redundancy did not amount to indirect sex discrimination.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1186.html
Goldsmith, R (on the application of) v London Borough of Wandsworth
[2004] EWCA Civ 1170
Court of Appeal, 27 August 2004: PRIVATE LIFE; LIFE; HEALTH
Failure of local authority to address patient's right to private life when deciding to transfer her to a nursing home; failure of decision-making process to act in the best interests of patient and her human rights.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1170.html
A & Ors v Secretary of the State for the Home Department
[2004] EWCA Civ 1123
Court of Appeal, 11 August 2004: LIBERTY AND SECURITY; TORTURE
Permissible on national security grounds to justify detention based on evidence obtained under torture abroad.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
N (Kenya) v Secretary of State for the Home Department
[2004] EWCA Civ 1094
Court of Appeal, 5 August 2004: PRIVATE AND FAMILY LIFE; REFUGEE; DEPORTATION
Commission of serious crimes by refugee justified his deportation despite disruption to his family life.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1094.html
July 2004
Last updated 1 August 2004.
Boyce & Joseph v R
[2004] UKPC 32
Privy Council, 7 July 2004: DEATH PENALTY Majority decision that mandatory death penalty was not unconstitutional on grounds that it was saved as an �existing law' prior to the enactment of the Constitution. 18.0pt">
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/32.html
Watson v R
[2004] UKPC 34
Privy Council, 7 July 2004: DEATH PENALTY; CRUEL AND INHUMAN TREATMENT
Mandatory death penalty confirmed as an inhuman punishment which could not be saved as an �existing law'.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/34.html
R v Keefe & Rymer
CA 162/04; 187/04
Court of Appeal, 22 July 2004: LIBERTY & SECURITY
Challenge to bail decision.
Full text at
http://www.brookers.co.nz
R v Condon
CA 373/03
Court of Appeal, 21 July 2004: LEGAL REPRESENTATION
Failure of judge to adjourn proceedings following withdrawal of counsel did not result in miscarriage of justice.
Full text at
http://www.brookers.co.nz
Huata v Prebble & Anor
CA 34/04
Court of Appeal, 16 July 2004: POLITICAL PARTICIPATION; SEPARATION OF POWERS
Claim for judicial review of decision by parliamentary party leader to declare MP's seat vacant following conviction for fraud.
Full text at
http://www.brookers.co.nz
Jennings v Buchanan
[2004] UKPC 36
Privy Council, 14 July 2004: EXPRESSION; POLITICAL PARTICIPATION
Whether an MP may be held liable for defamation after reaffirming the privileged statement outside Parliament.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/36.html
Minister of Finance & Anor v Van Heerden
Case CCT 63/03
Constitutional Court, 29 July 2004: EQUALITY; WORK
Whether differentiated employers contribution to political office bearers' pension fund constituted unfair discrimination or were justified in interests of affirmative action.
Full text at
http://www.concourt.gov.za/cases.php
Attorney General v Rodionov
[2004] UKPC 38
Privy Council, 20 July 2004: LIBERTY & SECURITY; JURISDICTION
Privy Council had no jurisdiction to hear appeal against refusal of habeas corpus pending extradition.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/38.html
Matthew v The State
[2004] UKPC 33
Privy Council, 7 July 2004: DEATH PENALTY
Majority decision that mandatory death penalty was not unconstitutional on grounds that it was saved as an �existing law' prior to the enactment of the Constitution.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/33.html
LS, R (on application of) v Chief Constable of South Yorkshire Police
[2004] UKHL 39
House of Lords, 22 July 2004: EVIDENCE; PRIVACY; EQUALITY
Retention of fingerprints and DNA evidence did not breach Arts 8 and 14 of the ECHR.
Full text at http://www.bailii.org/uk/cases/UKHL/2004/39.html
US Government v Barnette & Anor
[2004] UKHL 37
House of Lords, 22 July 2004: JURISDICTION; FAIR HEARING
UK courts were not under a duty not to enforce a confiscation order granted in the US courts and instead allow it to be challenged by way of appeal since the circumstances did not fall within the exception to non extra-territorial applicability of the ECHR laid down in Soering v UK (1989).
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/37.html
South Bucks District Council & Anor v Porter
[2004] UKHL 33
House of Lords, 1 July 2004: HOUSING
Housing needs of traveller justified granting of retrospective planning permission for unlawful development.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/33.html
June 2004
Last updated 1 July 2004.
Andar Transport Pty Ltd v Brambles Limited
[2004] HCA 28
High Court, 15 June 2004: WORK Duty of care owed by employer towards employee in providing a safe system of work.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/28.html
Application under s. 83.28 of the Criminal Code (Re)
[2004] SCC 42
Supreme Court, 23 June 2004: LIBERTY & SECURITY; FAIR HEARING; JUDICIAL INDEPENDENCE
Whether provision allowing for gathering of information and investigative hearings to combat terrorism unduly infringed suspect's right to silence and judicial independence and impartiality.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc42.html
Vancouver Sun v Attorney General & Ors
[2004] SCC 43
Supreme Court, 23 June 2004: FAIR HEARING; EXPRESSION
Whether hearing for determining constitutional validity of investigative hearing provision and validity of order for investigative hearing in terrorism case should be conducted in camera or in open court.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc43.html
British-Columbia v. Canadian Forest Products Ltd.
[2004] SCC 38
Supreme Court, 11 June 2004: ENVIRONMENT; REMEDIES
Appropriate basis for calculating compensation for damage to environmentally sensitive area.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc38.html
Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General)
[2004] SCC 39
Supreme Court, 11 June 2004: WORK ; EQUALITY ; JURISDICTION
Human Rights Tribunal had jurisdiction over labour dispute concerning discrimination in collective agreement where human rights issue raised.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc39.html
Secretary for Security v Prabakar
[2004] HKFCA 39
Court of Final Appeal, 8 June 2004: ASYLUM; TORTURE
Minister under a duty to adhere to a policy of not deporting a person to a country where claim that he would be subjected to torture in that country was considered to be well-founded.
Full text at
www.hklii.org/hk/eng_jud/HKCFA/2004
/20040608_FACV000016_2003.html
Grant v The Director of Correctional Services (Jamaica) & Anor
[2004] UKPC 27
Privy Council, 14 June 2004: LIBERTY &SECURITY; APPEAL
Grounds for special leave to appeal in proceedings seeking habeas corpus against an extradition order.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/27.html
R v Dawson
CA430/03
Court of Appeal, 17 June 2004: FAIR HEARING
Impact of non-disclosure by prosecution on fairness of trial.
Full text at
http://www.brookers.co.nz
Manuel v The Superintendent, Hawkes Bay Regional Prison
CA67/04
Court of Appeal, 15 June 2004: LIBERTY & SECURITY
Legality of recall of prisoner on parole.
Full text at
http://www.brookers.co.nz
Independent Publishing Company Ltd v Attorney General & Anor
[2004] UKPC 26
Privy Council, 8 June 2004: EXPRESSION; FAIR HEARING; REMEDIES
Constitutionality of non-publication orders issued against the media concerning ongoing high-profile criminal trial; scope of constitutional redress for violation of rights to free expression and due process.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/26.html
Evans v Amicus Healthcare Ltd
[2004] EWCA Civ 727
Court of Appeal, 25 June 2004: FAMILY; CHILDREN
Whether refusal of IVF treatment and destruction of frozen embryos following withdrawal of consent by former partner breached applicant's rights under Articles 8 and 12 of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/727.html
Ghaidan v Godin-Mendoza
[2004] UKHL 30
House of Lords, 21 June 2004: HOUSING; EQUALITY
Right of surviving spouse or partner to become a statutory tenant by succession on the death of a protected tenant of a dwelling-house extended to same-sex relationships. Includes useful appendix to Lord Steyn's judgment on declarations of incompatibility to date under the Human Rights Act.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/30.html
Razgar, R (on the Application of) v Home Secretary
[2004] UKHL 27
House of Lords, 17 June 2004: ASYLUM; FAMILY AND PRIVATE LIFE; TORTURE
Claim under Article 8 of the ECHR sufficient to prevent deportation of asylum seeker to Germany even where Article 3 is not engaged.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/27.html
Ullah, R (on the Application of) v Special Adjudicator
[2004] UKHL 26
House of Lords, 17 June 2004: ASYLUM; RELIGION; TORTURE
Ditto a claim under Article 9 and other Articles could be pursued.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/26.html
Ashcroft v ACLU
SC 03-218
Supreme Court, 29 June 2004: EXPRESSION; CHILDREN
Law introducing online registration designed to protect children from pornography unduly infringed adult's rights.
Full text at
http://www.supremecourtus.gov/opinions/03slipopinion.html
Sosa v Alvarez-Machain
SC 03-339
Supreme Court, 29 June 2004: ACCESS TO JUSTICE; TORTURE; JURISDICTION
Victims can use the Alien Tort Claims Act to sue in US courts for human rights abuses, particularly torture, committed overseas.
Full text at
http://www.supremecourtus.gov/opinions/03slipopinion.html
Hamdi v Rumsfeld
SC 03-6696
Supreme Court, 28 June 2004: ACCESS TO JUSTICE; LIBERTY & SECURITY
Detainees held in Guantanamo Bay could challenge their detention through US courts; detainee denied due process because of lack of opportunity to be heard.
Full text at
http://www.supremecourtus.gov/opinions/03slipopinion.html
Rasul v Bush
SC 03-334
Supreme Court, 28 June 2004: ACCESS TO JUSTICE; LIBERTY & SECURITY; JURISDICTION
Detainees held in Guantanamo Bay could challenge their detention through US courts; detention of both US and non nationals as �enemy combatants' without charge or trial is lawful.
Full text at
http://www.supremecourtus.gov/opinions/03slipopinion.html
May 2004
Last updated 9 June 2004.
Applicant S v Minister for Immigration and Multicultural Affairs
[2004] HCA 25
High Court, 27 May 2004: REFUGEES
Whether �able young-bodied men from Afghanistan' qualified as a social group for purposes of the Refugee Convention; whether implementation of a law of general application and/or ad hoc policy can amount to persecution.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/25.html
Harper v Attorney General
[2004] SCC 33
Supreme Court, 18 May 2004: EXPRESSION; POLITICAL PARTICIPATION
Whether third-party election advertising scheme and blackout on third party advertising on polling day infringed freedom of expression and, if so, whether the infringement was justifiable.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc33.html
Pritchard v Ontario Human Rights Commission
[2004] SCC 31
Supreme Court, 14 May 2004: FAIR HEARING
Whether legal opinions prepared by in-house counsel for an administrative board was protected by solicitor-client privilege.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc31.html
Jamaica Bar Association v Ernest Smith & Company
HCV207/03
Supreme Court, 30 October 2003: SEARCH & SEIZURE
Legality of police search and seizure conducted at behest of foreign state.
Full text at
http://www.sc.gov.jm
Mian Muhammad Shahbaz Sharif v Ministry of Interior,
Government of Pakistan, Islamabad & Five Others
CPLA NO.791/2004 & CMA NO. 3469/2003
Supreme Court, 7 April 2004: POLITICAL PARTICIPATION; MOVEMENT
Constitutionality of denying political party leader in exile from returning to country and participating in politics.
Full text at
www.scp.com.pk/sub_links/judgements/
CONSTITUTION PETITION NO. 55 of 2003.htm
The Queen v Seven Named Accused
Trials No. 1-55/2003
Supreme Court, 19 April 2004: FAIR HEARING
Independence of local magistrates in context of case determining applicability of British human rights law and jurisdiction in dependent territory.
Full text at http://www.paclii.org
President of the Republic of South Africa & Ors v Modderklip Boerdery (Pty) LTD
SCA 213/03
Supreme Court of Appeal, 27 May 2004: HOUSING
State breached its constitutional obligations to squatters by failing to realise their rights of access to adequate housing and land.
For further details see http://www.communitylawcentre.org.za
Secretary of State for the Home Department v Limbuela & Ors
[2004] EWCA Civ 540
Court of Appeal, 21 May 2004: ASYLUM; LIFE; INHUMAN TREATMENT; HOUSING
State has a duty under Article 3 of the ECHR to prevent homeless asylum-seekers from suffering destitution.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/540.html
X v Y
[2004] EWCA Civ 662
Court of Appeal, 28 May 2004: WORK; FAIR HEARING; PRIVATE LIFE
Claim by youth worker that dismissal for non-work related sexual offence breached right to private life.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/662.html
VANUATU
Vohor v Abiut
[2004] VUSC 5
Supreme Court, 13 May 2004: POLITICAL PARTICIPATION
Constitutionality of Speaker's ability to dissolve Parliament.
Full text at
http://www.paclii.org/vu/cases/VUSC/2004/5.html
April 2004
Last updated 12 May 2004.
Minister for Immigration and Multicultural Affairs v Respondents S152/2003
[2004] HCA 18
High Court, 21 April 2004 : REFUGEES; RELIGION
Nature of state's obligation to protect its citizens from attacks by non-state agents in context of alleged incidents against Jehovah's witnesses in Ukraine; what constitutes a pervasive pattern of harm for purposes of Refugees Convention.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/18.html
Minister for Immigration and Multicultural and Indigenous Affairs v B
[2004] HCA 20
High Court, 29 April 2004: REFUGEES; CHILDREN; FAMILY
Whether welfare jurisdiction extends to children of marriages of parents in immigration detention; interpretation of legislation in conformity with treaty obligations.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/20.html
R v Fontaine
[2004] SCC 27
Supreme Court, 22 April 2004: FAIR HEARING
Trial judge erred in withholding defence of mental disorder automatism from jury; nature of evidential burden.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc27.html
Boodhoo & Anor v Attorney General
[2004] UKPC 17
Privy Council, 1 April 2004: FAIR HEARING
Whether excessive delay in giving judgment violated the appellants' rights to a fair hearing in a property dispute.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/17.html
Campbell v MGN Ltd
[2004] UKHL 22
House of Lords, 6 May 2004: PRIVACY; EXPRESSION
Unlawful invasion of privacy following publication of photos and details about celebrity's drug treatment; discussion as to the extent to which an action for breach of confidence can be grounded in the right to privacy under Art 8 of the European Convention on Human Rights.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/22.html
A v West Yorkshire Police
[2004] UKHL 21
House of Lords, 6 May 2004: EQUALITY
Transsexual's application to become a police officer should not have been rejected.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/21.html
Mullen, R (on the application of) v Secretary of State for the Home Department
[2004] UKHL 18
House of Lords, 29 April 2004: REMEDIES; FAIR HEARING; EXTRADITION
Principles governing payment of compensation following unlawful extradition.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/18.html
MARCH 2004
Last updated 1 April 2004.
Truong v The Queen
[2004] HCA 10
High Court, 4 March 2004: FAIR HEARING; EXTRADITION; JURISDICTION
Accused could be tried for offences for which he was not specifically extradited provided there was sufficient proof to convict him of both.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/10.html
Putland v The Queen
[2004] HCA 8
High Court, 12 February 2004: LIBERTY & SECURITY; SENTENCING; DISCRIMINATION
Territory legislation permitting aggregate sentencing did not result in constitutionally impermissible discrimination between federal offenders.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/8.html
SGDB v Minister for Immigration
[2004] FCAFC 59
Federal Court (Full Court), 15 March 2004: FAIR HEARING; REFUGEES
Failure of tribunal to consider whether there was a well-founded fear of persecution on journey back to place of resettlement.
Full text at
http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/59.html
Attorney General v Hartwell
[2004] UKPC 12
Privy Council, 23 February 2004: REMEDIES
Scope of vicarious liability for police misconduct.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/12.html
R v Smith
[2004] SCC 14
Supreme Court, 4 March 2004: FAIR HEARING; APPEAL; JURISDICTION
Not in the interests of justice to hear an appeal on behalf of the appellant who had died seven years previously.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc14.html
State of Punjab & Ors v Kaur
Appeal (civil) 1382 of 1999
Supreme Court, 18 March 2004: EQUALITY; WORK
Test for applying equal pay doctrine in case concerning differential pay scales within the teaching profession.
Full text at
http://www.judis.nic.in/sc
Mehta v Union of India & Ors
Writ Petition (civil) 4677 of 1985
Supreme Court, 18 March 2004: ENVIRONMENT
Issuing of detailed directions to deal with impact of mining activity on local environment.
Full text at
http://www.judis.nic.in/sc
The Commissioner of Police & Ors v Avadhuta & Anor
Appeal (civil) 6230 of 1990
Supreme Court, 11 March 2004: RELIGION; ASSEMBLY
Restrictions on performing religious dance in public processions breached Article 25 of the Constitution.
Full text at
http://www.judis.nic.in/sc
Daniels v Campbell NO & Ors
CCT 40/03
Constitutional Court, 11 March 2004: DISCRIMINATION; RELIGION; FAMILY; PROPERTY
Unlawful to exclude partners to Muslim marriages from protection under inheritance laws.
Full text at
http://www.concourt.gov.za
State v Basson
CCT 30/03
Constitutional Court, 10 March 2004: JURISDICTION; INDEPENDENCE OF THE JUDICIARY
What constitutes �constitutional issues' for leave to appeal from the Supreme Court of Appeal against an acquittal in a criminal case following refusal of an application for recusal, where such an appeal would not raise a question of law and would deal only with findings of fact.
Full text at
http://www.concourt.gov.za
Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor
CCT 18/03
Constitutional Court, 9 March 2004: LIBERTY & SECURITY; ASYLUM SEEKERS
Detention of illegal immigrants prior to deportation deemed to be excessively long and lacking in sufficient safeguards.
Full text at
http://www.concourt.gov.za
Khosa & Ors v Minister of Social Development & Ors
CCT 12/03
Constitutional Court, 4 March 2004: LIFE; DISCRIMINATION; SOCIAL SECURITY
Unlawful to deny social assistance to destitute non-citizens who are permanent residents.
Full text at
http://www.concourt.gov.za
Flynn & Ors v. Her Majesty's Advocate (High Court of Justiciary)
[2004] UKPC D1
Privy Council (Scotland), 18 March 2004: LIBERTY & SECURITY; SENTENCING
Revised sentencing regime for those convicted of murder held to be compatible with European Convention on Human Rights (EHCR) after removal of undue executive discretion.
Full text at http://www.privy-council.org.uk/files/other/flynn.rtf
Re McKerr
[2004] UKHL 12
House of Lords, 11 March 2004: LIFE
No obligation to conduct further investigation into fatal shooting occurring 20 years previously since no continuing breach of Article 2 of the ECHR; non- retrospectivity of Human Rights Act confirmed.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/12.html
R v Her Majesty's Coroner for the Western District of Somerset & Anor ex parte Middleton
[2004] UKHL 10
House of Lords, 11 March 2004: LIFE; PRISONERS
Regime for conducting investigations into deaths in custody did not in all cases meet the obligations under Article 2 of the ECHR; requirement that inquest verdicts clearly express jury's conclusions on cause of death.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/10.html
R v Her Majesty's Coroner for the County of Yorkshire ex parte Sacker
[2004] UKHL 11
House of Lords, 11 March 2004: LIFE; PRISONERS
New inquest ordered after original failed to address the positive obligation under Article 2 of the ECHR to safeguard life following prisoner's suicide.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/11.html
R v Police Complaints Authority ex parte Green
[2004] UKHL 6
House of Lords, 26 February 2004: LIFE; CRUEL, INHUMAN & DEGRADING TREATMENT
Conduct of investigation into serious injuries resulting from alleged police misconduct did not breach either Article 2 or 3 of the ECHR.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/6.html
Ali v Lord Grey School
[2004] EWCA Civ 382
Court of Appeal (England & Wales), 29 March 2004: EDUCATION
Unlawfully excluding pupil from school could violate his right to education under Article 2 of the First Protocol to the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/382.html
R v Dundon
[2004] EWCA Crim 621
Court of Appeal (England & Wales), 18 March 2004: FAIR HEARING; INDEPENDENCE OF THE JUDICIARY
Conviction quashed on grounds that naval court martial by a Judge Advocate was insufficiently independent and impartial.
Full text at
http://www.bailii.org/ew/cases/EWCA/Crim/2004/621.html
C v Home Office and the Criminal Injuries Compensation Authority
[2004] EWCA Civ 234
Court of Appeal (England & Wales), 3 March 2004: ACCESS TO JUSTICE; LIBERTY & SECURITY
Restricted legal aid scheme for making a criminal injuries compensation claim was compatible with the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/234.html
February 2004
Last updated 24 February 2004.
Bashford v Information Australia (Newsletters) Pty Limited
[2004] HCA 5
High Court, 11 February 2004: FREE EXPRESSION
Absence of availability of defence of fair and accurate report of judicial proceedings in a defamation action does not preclude the availability of defence of qualified privilege.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2004/5.html
Cartwright & Anor v Superintendent of HM Prison & Anor
[2004] UKPC 10
Privy Council, 10 February 2004: HABEAS CORPUS; EXTRADITION; APPEAL
Right of appeal lay from decision to deny extradition and grant habeas corpus even in absence of legislative provision.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/10.html
Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment & Anor
[2004] UKPC 6
Privy Council, 29 January 2004: ENVIRONMENT; FAIR HEARING
Decision to build environment-threatening dam not unlawful; no obligation to hold public hearing on the project.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/6.html
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
[2004] SCC 4
Supreme Court, 30 January 2004: CRUEL, INHUMAN TREATMENT; CHILDREN
Use of reasonable force by parents and teachers in the form of corporal punishment does not constitute cruel and inhuman treatment.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc4.html
R v Lyttle
[2004] SCC 5
Supreme Court, 12 February 2004: FAIR HEARING; EQUALITY OF ARMS
Undue restriction on right of accused to conduct proper cross-examination of principal prosecution witness.
Full text at
http://www.canlii.org/ca/cas/scc/2004/2004scc5.html
Worme & Anor v Commissioner of Police
[2004] UKPC 8
Privy Council, 29 January 2004: FREE EXPRESSION
Crime of intentional libel did not violate the right to free expression following publication of article critical of Prime Minister. Free expression protects the freedom to publish material discussing political matters and the conduct of public figures in relation to parliamentary elections provided the material is true and for the public benefit.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/8.html
Bishop of Roman Catholic Diocese of Port Louis & Ors v Tengur & Ors
[2004] UKPC 9
Privy Council, 3 February 2004: EDUCATION; EQUALITY; RELIGION
Admissions policy for schools favouring certain religion violated constitutional equality provisions.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/9.html
Harracksingh v Attorney General of Trinidad and Tobago
[2004] UKPC 3
Privy Council, 15 January 2004: APPEAL; EVIDENCE; LIBERTY & SECURITY; REMEDIES
Appeal court erred in reversing trial judge's conclusions on reliability of witness testimony in civil action against police for false imprisonment and assault. Attorney General vicariously liable for torts.
Full text at
http://www.bailii.org/uk/cases/UKPC/2004/3.html
Al �Ameri v Royal Borough of Kensington and Chelsea
[2004] UKHL 4
House of Lords, 5 February 2004: HOUSING; LIFE; ASYLUM
Asylum seeker facing destitution should not be forced to accept accommodation outside an area of his choosing.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/4.html
R v H
[2004] UKHL 3
House of Lords, 5 February 2004: FAIR HEARING; EVIDENCE
Claims for public interest immunity made on behalf of the prosecution will not violate Article 6 of the ECHR provided they are conducted with scrupulous attention to appropriate governing principles and continuing regard to the proper interests of the defendant.
Full text at
http://www.bailii.org/uk/cases/UKHL/2004/3.html
JANUARY 2004
Last updated 06 January 2004.
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs
[2003] HCA 71
High Court, 9 December 2003: REFUGEES, SEXUALITY
Whether a need for homosexuals in Bangladesh to act discreetly to avoid serious harm constituted persecution.
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2003/71.html
R v Malmo-Levine; R v Caine
[2003] SCC 74
R v Clay
[2003] SCC 75
Supreme Court, 23 December 2003: LIBERTY
Prohibition on marijuana did not infringe liberty rights under s 7 of the Charter.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc75.html and
http://www.canlii.org/ca/cas/scc/2003/2003scc74.html
Beals v Saldanha
[2003] SCC 72
Supreme Court, 18 December 2003: REMEDIES
Section 7 of the Charter protecting principles of fundamental justice did not shield defendant from enforcement of foreign judgment.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc72.html
R v Taillefer; R v Duguay
[2003] SCC 70
Supreme Court, 12 December 2003: FAIR TRIAL
Failure of prosecution to disclose all relevant evidence to defence infringed right of accused to make full answer and defence.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc70.html
Skeete v The State
[2003] UKPC 82
Privy Council, 24 November 2003: FAIR TRIAL
Impact of conduct of counsel and judge on fairness of trial for attempted murder.
Full text at
http://www.bailii.org/uk/cases/UKPC/2003/82.html
Attorney General's Reference No 2 of 2001
[2003] UKHL 68
House of Lords, 11 December 2003: FAIR TRIAL
Whether criminal proceedings may be stayed on the grounds that the �reasonable time' provision of Art 6 ECHR has been violated even though there is no demonstrable prejudice to the accused; when does �reasonable time' period commence?
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/68.html
Marcic v Thames Water Utilities Ltd
[2003] UKHL 66
House of Lords, 4 December 2003: HOME, ENVIRONMENT
Whether a statutory scheme for dealing with periodic sewer flooding satisfied the right to privacy and protection of the home under Art 8(1) of the ECHR.
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/66.html
DECEMBER 2003
Last updated 4 December 2003.
Purvis v New South Wales (Dept of Education and Training)
[2003] HCA 62
High Court, 11 November 2003: EQUALITY, DISABILITY, EDUCATION
Whether suspension and exclusion of brain damaged pupil for violent behaviour constituted discrimination on grounds of disability
Full text at
http://www.austlii.edu.au/au/cases/cth/HCA/2003/62.html
Doucet-Boudreau v Nova Scotia (Minister of Education)
[2003] SCC 62
Supreme Court, 6 November 2003: EDUCATION, LANGUAGE, MINORITIES, REMEDIES
Trial judge retained his jurisdiction to ensure enforcement of order requiring province to provide minority language facilities in secondary schools since any remedy must guarantee full and meaningful protection of Charter rights.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc62.html
Maranda v Richer
[2003] SCC 67
Supreme Court, 14 November 2003: SEARCH & SEIZURE
Extensive search of lawyer's office to uncover evidence on client breached s 8 of Charter given that the information could have been obtained from other sources and the lawyer was not notified. Presumption that information about lawyer's billing fees falls within lawyer-client privilege.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc67.html
Commission des de la personne et des droits de la jeunesse v Maksteel Quebec
[2003] SCC 68
Supreme Court, 14 November 2003: EQUALITY, WORK, PRISONERS
No protection under s 18(2) of the Charter from dismissal due to incarceration.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc68.html
Balkissoon Roodal v The State
PC Appeal 18/2003
Privy Council, 20 November 2003: DEATH PENALTY, CRUEL, INHUMAN AND DEGRADING TREATMENT
Mandatory death penalty declared unconstitutional. Ruling will probably lead to reconsideration of sentences of 84 death row inmates in Trinidad and perhaps 200 more in the Bahamas, Barbados and Jamaica when similar challenges are heard.
Full text at www.privy-council.org.uk/files/other
/balkissoon roodal.rtf
Von Brandenburg, R (on the application of) v East London and the City Mental Health NHS Trust & Anor
[2003] UKHL 58
IH, R (on the application of) v Secretary of State for the Home Department & Anor
[2003] UKHL 59
House of Lords, 13 November 2003: MENTAL HEALTH, LIBERTY & SECURITY
Two cases dealing with the principles to be exercised in determining whether (a) a discharged mental health patient can be readmitted in the absence of any evidence demonstrating a change of circumstances and (b) a conditionally discharged patient can continue to be detained.
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/58.html and http://www.bailii.org/uk/cases/UKHL/2003/59.html
Goodridge & Ors v Department of Public Health & Anor
[FN2] SJC-08860
Massachusetts Supreme Court, 18 November 2003: EQUALITY, SEXUALITY
Denying civil marriage and accompanying benefits to same-sex couples ruled unconstitutional.
Full text at
http://www.state.ma.us
NOVEMBER 2003
Last updated 4 November 2003.
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 231
Federal Court, 24 October 2003: ASYLUM
Failure of tribunal to adequately consider that Taliban still posed a threat to applicant in Afghanistan.
Full text at
http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/231.html
Martin v Nova Scotia Workers Compensation Board
[2003] SCC 54
Supreme Court, 3 October 2003: EQUALITY, WORK
Workers compensation legislation infringing equality provisions of Charter by excluding certain injuries and benefits from scheme.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc54.html
Union of India v Nanickan & Anor
Appeal (crl.) 21 of 2002
Supreme Court, 13 October 2003: LIBERTY & SECURITY, DELAY
Right to make representation against order of preventive detention breached by inordinate delay.
Full text at
http://www.judis.nic.in/sc/qrydisp.asp?tfnm=19383
Alexkor Ltd v Richtersveld Community & Ors
CCT 19/03
Constitutional Court, 14 October 2003: INDIGENOUS PEOPLE, LAND, ENVIRONMENT
Recognition of indigenous people's claim to land and natural resources following illegal dispossession.
Full text at
http://www.concourt.gov.za/files/alexkor/alexkor.pdf
Regina v Secretary of State for the Home Department ex parte Amin
[2003] UKHL 51
House of Lords, 16 October 2003: LIFE, PRISONERS
Failure to adequately protect prisoner from fellow inmate and to adequately investigate his death.
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/51.html
Wainwright & Anor v Home Office
[2003] UKHL 53
House of Lords, 16 October 2003: PRIVACY, PRISONERS, DEGRADING TREATMENT
Lawfulness of strip searching of prisoner. Discussion as to whether English common law recognised a tort of invasion of privacy in light of incorporation of Article 8(1) of the ECHR.
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/53.html
OCTOBER 2003
Rogers v Nationwide News Pty Limited
[2003] HCA 52
High Court, 11 September 2003: FREE EXPRESSION
Nature of protection afforded to publication of court proceedings as a defence to a defamation action. Consideration of whether a court officer in making available reasons for a judgment publishes a protected report of the court's proceedings and whether a newspaper article is a later publication of a fair extract, abstract or summary of a protected report.
Full text at
http://www.austlii.edu.au/au/cases/cth/high_ct/2003/52.html
Wewaykum Indian Band v Canada
[2003-09-26] SCC
Supreme Court, 26 September 2003: FAIR HEARING
Criteria for establishing reasonable apprehension of judicial bias. Allegation that judge's involvement as federal Associate Deputy Minister of Justice in the early stages of an indigenous people's land claim in the mid 1980s gave rise to a reasonable apprehension of bias.
Full text at
http://www.canlii.org/ca/cas/scc/2003/09.html
R v Powley
[2003-09-19] SCC
Supreme Court, 19 September 2003: INDIGENOUS PEOPLES
Criteria for supporting a site-specific indigenous peoples' claim, i.e. to hunt for food in a certain area. Rejection of the approach that such rights must find their origin in the pre-contact practices of indigenous ancestors, thereby denying current status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc43.html
Bike World Limited v The Comptroller of Customs & Anor
Appeal No. 46 of 2002
Privy Council, 6 October 2003: PROPERTY
Unreasonable seizure of imported goods by customs violated constitutional property rights.
Full text at
http://www.privy-council.org.uk/files/other/bike.rtf
R v Young
CA13/03
Court of Appeal, 15 September 2003: FAIR HEARING
Failure to receive testimony of foreign-based defence witness, either through provision of video link or by admitting his written evidence, after refusal to fund his return flight resulted in miscarriage of justice.
Full text at
http://www.brookers.co.nz
Watts, R (on the application of) v Bedford Primary Care Trust & Ors
[2003] EWHC 2228 (Admin)
High Court, 01 October 2003: HEALTH
Extent of state's positive obligation to provide healthcare in the context of Articles 3 and 8 of the European Convention on Human Rights. Claim for reimbursement of healthcare costs following treatment abroad.
Full text at
http://www.bailii.org/ew/cases/EWHC/Admin/2003/2228.html
SEPTEMBER 2003
R v Asante-Mensa
(2003-07-11) SCC
Supreme Court, 11 July 2003: LIBERTY & SECURITY
Citizen could use reasonable force in making a lawful arrest under Ontario's Trespass to Property Act. Concept of �arrest' defined.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc38.html
Trociuk v British Columbia
(2003-06-06) SCC
Supreme Court, 6 June 2003: EQUALITY
Denying an estranged father's request to have his details recorded on his child's birth certificate and therefore choose the latter's surname constituted unlawful sex discrimination.
Full text at
http://www.canlii.org/ca/cas/scc/2003/2003scc34.html
Yeung Ka Yee v HKSAR
FAMC No. 16 of 2003
Court of Final Appeal, 30 May 2003: LIBERTY & SECURITY; ILL TREATMENT
Two-hour delay in conveying suspect to police station acceptable since not all breaches of custody guidelines amounted to oppression.
Full text at
www.hklii.org/hk/eng_jud/HKCFA/2003/
20030530_FAMC000016_2003.html
State of Haryana & Anor v Tilak Raj & Ors
Appeal (Civil) 4570/2003
Supreme Court, 14 July 2003: EQUALITY; WORK
Equal pay for equal work should only be applied to comparable jobs and not, for example, between daily-rated workers and regular employees. However, former should be paid at least minimum wage.
Full text at
http://www.judis.nic.in/sc/qrydisp.asp
The Gleaner Company & Anor v Abrahams
PC 86/ 2001
Privy Council, 14 July 2003: FREE EXPRESSION
Award of over �500,000 damages in libel case not deemed to be excessive.
Full text at
http://www.privy-council.org.uk/files/other/gleaner-final.rtf
R v Greer
CA197/01
Court of Appeal, 4 June 2003: FAIR HEARING
Denying computer facilities to prisoners could have a detrimental impact on their ability to prepare a full defence.
Full text at
http://www.brookers.co.nz1
London Borough of Harrow v Qazi
[2003] UKHL 43
House of Lords, 31 July 2003: HOUSING
Held 3:2 that the right to respect for home did not prevail against a local authority order for lawful possession against a tenant. Extensive discussion of ECHR jurisprudence on housing rights.
Full text at
http://www.bailii.org/uk/cases/UKHL/2003/43.html
AUGUST 2003
Dranichnikov v Minister for Immigration and Multicultural Affairs; Re Minister for Immigration
[2003] HCA 26
High Court, 8 May 2003
�Particular social group' category must be precisely defined when assessing refugee claim
Refugee Tribunal erred by treating Russian asylum seeker as a member of a wide social group of entrepreneurs and/or businessmen. Instead should have classified him as coming from a more limited group consisting of entrepreneurs and/or businessmen who had publicly criticised law enforcement authorities for failing to take action against crime or criminals, thereby placing themselves at risk of persecution.
Full text at
http://www.austlii.edu.au/au/cases/cth/high_ct/2003/26.html
Halpern v Canada (Attorney general)
(2003-06-10) ONCA C39172;C39174
Ontario Court of Appeal, 10 June 2003
Unlawful discrimination to deny same-sex couples the right to marry.
Case brought by seven gay and lesbian couples that wished to participate in a civil marriage ceremony.
Full text at
http://www.canlii.org/on/cas/onca/2003/2003onca10314.html
Razgar, R (on the application of) v Secretary of State for the Home Department
[2003] EWCA Civ 840 (19 June 2003)
Court of Appeal, 19 June 2003
The Secretary of State cannot lawfully issue a certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 that human rights claims by asylum seekers are �manifestly unfounded' unless the claim is bound to fail before an adjudicator. Insufficient that he considers that the claim is likely to fail on appeal, or even that it is very likely to fail.
Challenge by an Iraqi asylum seeker of the decision to remove then to another EU state on the grounds that would unnecessarily interfere with his family life contrary to Art 8 of the ECHR.
Full text at
http://www.bailii.org/ew/cases/EWCA/Civ/2003/840.html
Grutter v Bollinger (02-241)
Supreme Court, 23 June 2003
Affirmative action upheld in university admissions policy.
White Michigan resident unsuccessfully challenged University of Michigan's admissions policy designed to achieve ethnic diversity.
Full text at
http://supct.law.cornell.edu/supct/html/02-241.ZS.html
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