Digest
Commonwealth
Human Rights Law
Summer
2014
Vol.8 Nos. 2, 3
and Index
(combined edition)
Commonwealth
Human Rights
Law Digest
8 CHRLD 123-278
Digest
Commonwealth
Human Rights Law
Summer
2014
Vol.8 Nos. 2, 3
and Index
(combined edition)
Editor
Rachel Fleetwood
Consultant editor
Jeremy McBride
Editorial Board
Diana Copper | commonwealth ­secretariat
Martin Lau | soas
Derek O’Brien | oxford brookes university
John Wadham | interights
Vesselina Vandova | interights
Using the Digest
Acknowledgements
The Digest is arranged by subject matter.
The entries under each subject heading are
arranged according to the sub-headings relating
to that issue. A single decision may have a
number of sub-headings under the same or
different subject headings. The full summary
of a decision will appear under the sub-heading
referring to the main issue addressed in
that case. Note that one sub-heading may be
followed by several cases where the same point
has been raised in each.
interights would like to express its gratitude
to all those who have made copies of relevant
judgments available for summarising in the
Digest. Such persons are too numerous to
mention, but the publication would not exist
without their invaluable assistance.
Full details including the relevant court,
names of judges, names of counsel (where
available) and date of judgment are given
for each decision summarised. At the end of
the summary the court reference is given for
unreported decisions and citations are supplied
to decisions which have been reported. There
is also a hyperlink to allow readers to access the
full text of the judgment online. All hyperlinks
are correct at the time of publication.
In particular we would like to thank Joanna
Grant and Camilla Macpherson at Allen &
Overy; and Elsayed Abushark, Christiane
Adelmann, Olurotimi Agbaje, Eunice Agus,
Matthew Ahluwalia, Mohammed Akbar,
Sohret Ali-Faik, Aarti Amin, Rudy Arthur,
Milena Assenova, Andrew Bailey, Sarah
Barker, Nicholas Burke, Verity Burrows, Helen
Butterworth, Tyrone Campbell, Jessica Clark,
Kenniesha Cyrus, Emma Davies, Tara-leigh
Davies, Shavir Deo, Kate Ellis, Alexander
Estorick, Rachel Fisher, Patrick Freer, Hollie
French-Williams, Jasper Gerhards, Rebecca
Gerrard, Catherine Gibbons, Sofia Goncalves,
Ahmed Hassan, Roisin Hogan, James
Husbands, Stephen Hutton, Asad Iqbal, Hafsa
Jabbar, Charlotte Jayaseelan, Alice Johnson,
Lucy Johnson, Matthew Jones, Charlotte Judd,
Tomasz Kasprzyk, Rachel Kelly, Nafisah Khan,
David Knight, Joanna Lake, Siobhan Lewis,
Duncan Mato, Kamini Mistry, Lena Mohamed,
Sarah Mold, Natasha Montaque, Clizia Motterle,
Helen Mowatt, Leah Oaker, Roshni Parekh,
Anisah Patel, Davian Patel, Ewa Pieczonka,
Harold Pollock, Nadezhda Rafieva, James
Ramsden, Serap Sarica, Bethan Sayle, Laura
Sentkovsky, Joshua Sheridan, Kristina Smith,
Sana Sodha, Daniel Stafford, Emma Stone,
Hannah Street, Jennifer Strugnell, Danielle
Taylor, Martha Tengenesha, Melodie Thompson,
Alison Tran, Simran Virdi, Chloe Watling,
Johanna White, John White, Hannah Williams,
Sara Williams, Angela Williamson, Hannah
Williamson, Rachel Winston and Evin Zengin.
Within each summary, citations are provided
for judgments applied, followed, considered or
distinguished, where relevant. We hope that
such citations will help the reader to identity
the important human rights-related decisions,
whether at domestic or regional/international
level, referred to in each case. References to
decisions summarised in this or a previous
issue of the Digest also give the relevant Digest
citation.
interights welcomes readers’ comments
on both the format and style of the Digest
summaries. Please note that the summaries
along with the hyperlinks to the full-text
decisions of all Digest cases are provided
on interights’ Commonwealth human
rights law database, located on our website at
www.interights.org.
interights would like to thank the pro bono
team and lawyers at Allen & Overy and the
pro bono coordinators at the University of Law
centres across the country.
This issue of the Digest has been developed
with the generous support of the
Commonwealth Secretariat.
Contents
Using the Digest
ii
Summaries of judicial decisions
Acknowledgements
ii
Children123
Table of cases
By nameiv
Cruel, inhuman or degrading treatment
134
Death penalty
138
By jurisdictionvii
Dignity140
Editorial Review
Disability140
ix
Education140
Equality143
Expression159
Fair hearing
165
Family life
191
Health200
Housing206
Information210
Liberty & security
Life
214
226
Movement237
Political participation
243
Private life
246
Property253
Refugees255
Religion256
Remedies260
Reproductive rights
265
Separation of powers
266
Sexuality267
Women272
Work276
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iii
Table of cases
By name
AB v Western Australia; AH v
Western Australia
High Court, Australia
Abortion Supervisory Committee
v Right To Life New Zealand Inc
Court of Appeal, New Zealand
Adams, R (on the application of)
v Secretary of State for Justice
Supreme Court, United Kingdom
Air Canada v Thibodeau
Federal Court of Appeal, Canada
268
131
187
262
ANS & Anor v ML
Court of Session (Scotland), United
Kingdom191
Antony Murithi v OCS Meru Police
Station & Ors
High Court (Meru), Kenya
134
Bachpan Bachao Andolan v Union
of India & Ors
Supreme Court, India
127
British Broadcasting Corporation
(BBC) & Anor, R (on the application
of) v Ahmad (Rev 1)
High Court (England and Wales),
United Kingdom
161
Boulle v Government of Seychelles &
Anor
Constitutional Court, The Seychelles
243
Burnip v Birmingham City Council &
Anor
Court of Appeal (Civil Division), (England &
Wales), United Kingdom
147
Canada (Information Commissioner)
v Canada (Minister of National
Defence)
Supreme Court, Canada
210
iv
Centre for Health Human Rights
& Development & Ors V Attorney
General
Constitutional Court, Uganda
266
Centre for Rights Education and
Awareness (CREAW) & Ors v
Attorney General
High Court (Nairobi), Kenya
152
Chala Sani Abdula v The Queen
Supreme Court, New Zealand
174
City of Johannesburg Metropolitan
Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Anor
Constitutional Court, South Africa
207
Clark & Ors v Registrar of the
Manukau District Court & Anor
Court of Appeal, New Zealand
185
CM v NG
High Court (Western Cape), South Africa 194
Court on its Own Motion v Dept of
Women and Child Development &
Ors
High Court, India
126
Director of Human Rights
Proceedings v Henderson
Human Rights Review Tribunal,
New Zealand
246
Dlamini v Dlamini & Anor
High Court, Swaziland
193
E (Children), Re
Supreme Court, United Kingdom
123
Freedom of Expression Institute v
Chair, Complaints and Compliance
Committee & Ors
South Gauteng High Court
(Johannesburg), South Africa
159
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table of cases by name
G, R (on the application of) v X School
Supreme Court, United Kingdom
177
Mohd. Hussain @ Julfikar Ali v The
State (Govt. of NCT) Delhi
Supreme Court, India
182
Gawanas v Government of the
Republic of Namibia
Supreme Court, Namibia
223
Moore v British Columbia (Education)
Supreme Court, Canada
143
Ghisalal v Dhapubai (D) By Lrs
Supreme Court, India
253
Nandini Sundar & Ors v State of
Chattisgarh
Supreme Court, India
Greens & Ors, Re Application for
Judicial Review
Court of Session, Outer House
(Scotland), United Kingdom
136
HH & Ors v Deputy Prosecutor of the
Italian Republic, Genoa
Supreme Court, United Kingdom
240
HKSAR v Muhammad Riaz Khan
Court of Final Appeal, Hong Kong
167
Humphreys v Revenue and Customs
Supreme Court, United Kingdom
154
In Re Efigenia Semente; Semente v
Chingufo
High Court, Namibia
247
Indian Medical Association v Union of
India & Ors
Supreme Court, India
140
Katam v Chepkwony & Anor
High Court (Mombasa), Kenya
274
Kelvin Singh v Attorney General
High Court, Trinidad & Tobago
260
Kimu v Access Malawi Limited & Ors
High Court (Commercial Division),
Malawi249
Kong Yunming v The Director of
Social Welfare; Yao Man Fai George
v The Director of Social Welfare
High Court, Hong Kong
150
Nnamdi v Attorney General
Supreme Court, Samoa
227
215
Paixão & Anor v Road Accident Fund
Supreme Court, South Africa
197
Pao & Ors v Attorney General &
Anor
High Court, Kenya
230
Plaintiff M70/2011 v Minister
for Immigration and Citizenship;
Plaintiff M106 of 2011 v Minister for
Immigration and Citizenship
High Court, Australia
237
Ponifasio v Samoa Law Society
Court of Appeal, Samoa
172
President Balochistan High Court Bar
Association v Federation of Pakistan
& Ors
Supreme Court, Pakistan
218
R (on the application of McDonald)
v Royal Borough of Kensington and
Chelsea
Supreme Court, United Kingdom
200
R v Ahmad & Ors
Supreme Court, Canada
169
Ralekoala v Minister of Human
Rights, Justice and Constitution
Affairs & Ors
Constitutional Court, Lesotho
156
214
Luc v R
Court of Appeal, The Bahamas
171
Mashilo & Anor v Prinsloo
Supreme Court of Appeal, South Africa
221
Razack Mohammed v Attorney
General & Anor
High Court, Trinidad & Tobago
138
Re E (Medical Treatment: Anorexia)
Court of Protection (England and
Wales), United Kingdom
232
Miguel v The State
Judicial Committee of the Privy Council,
Trinidad & Tobago
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v
table of cases by name
Re J (A Child: Disclosure)
Court of Appeal (Civil Division), (England
and Wales), United Kingdom
129
Samson Kiogora Rukunga v Zipporah
Gaiti Rukunga
High Court (Meru), Kenya
274
Sandesh Bansal v Union of India & Ors
High Court of Madhya Pradesh
Jabalpur, India
203
Selwyn Charles v The Attorney
General
High Court, Antigua & Barbuda
165
SL v Commission Scolaire Des Chênes
Supreme Court, Canada
256
Sullivan v Attorney General & Anor
Constitutional Court, The Seychelles
163
Susan Waithera Kariuki & Ors v
Town Clerk, Nairobi City Council
& Ors
High Court, Kenya
206
W v Registrar of Marriages
Court of Appeal, Hong Kong
250
Wendell Beckles v Attorney General
of Trinidad & Tobago & Anor
High Court, Trinidad & Tobago
217
Yemshaw v London Borough of
Hounslow
Supreme Court, United Kingdom
vi
272
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Table of cases
By jurisdiction
Africa
Mashilo & Anor v Prinsloo
221
Kenya
Paixão & Anor v Road Accident Fund
197
Antony Murithi v OCS Meru Police Station
& Ors
134
Swaziland
Centre for Rights Education and Awareness
(CREAW) & Ors v Attorney General
152
Uganda
Katam v Chepkwony & Anor
274
Pao & Ors v Attorney General & Anor
230
Samson Kiogora Rukunga v Zipporah Gaiti
Rukunga
274
Susan Waithera Kariuki & Ors v Town Clerk,
Nairobi City Council & Ors
206
Dlamini v Dlamini & Anor
Centre for Health Human Rights &
Development & Ors v Attorney General
Antigua & Barbuda
Selwyn Charles v The Attorney General
The Bahamas
Ralekoala v Minister of Human Rights, Justice
and Constitution Affairs & Ors
156
Luc v R
Kimu v Access Malawi Limited & Ors
Namibia
165
171
Canada
Air Canada v Thibodeau
249
266
Americas
Lesotho
Malawi
193
262
Canada (Information Commissioner) v Canada
(Minister of National Defence)
210
Gawanas v Government of the Republic of
Namibia
223
Moore v British Columbia (Education)
143
In Re Efigenia Semente; Semente v
Chingufo
R v Ahmad & Ors
169
SL v Commission Scolaire Des Chênes
256
247
Trinidad & Tobago
The Seychelles
Boulle v Government of Seychelles
& Anor
243
Sullivan v Attorney General & Anor
163
Kelvin Singh v Attorney General
Miguel v The State
260
138
South Africa
Razack Mohammed v Attorney General &
Anor
214
City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39
(Pty) Ltd & Anor
207
Wendell Beckles v Attorney General of
Trinidad & Tobago & Anor
CM v NG
Freedom of Expression Institute v Chair,
Complaints and Compliance Committee
& Ors
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217
Asia
Hong Kong
159
HKSAR v Muhammad Riaz Khan
167
vii
t
able of cases by jurisdiction
Kong Yunming v The Director of Social
Welfare, Yao Man Fai George v The
Director of Social Welfare
W v Registrar of Marriages
Re E (Medical Treatment: Anorexia)
232
150
Re J (A Child: Disclosure)
129
250
Yemshaw v London Borough of
Hounslow
272
India
Bachpan Bachao Andolan v Union of India
& Ors
127
Pacific
Australia
Court on its Own Motion v Dept of Women
and Child Development & Ors
126
AB v Western Australia; AH v Western
Australia
268
Ghisalal v Dhapubai (D) By Lrs
253
Indian Medical Association v Union of
India & Ors
140
Plaintiff M70/2011 v Minister for
Immigration and Citizenship; Plaintiff
M106 of 2011 v Minister for Immigration
and Citizenship
237
Mohd. Hussain @ Julfikar Ali v The State
(Govt. of NCT) Delhi 182
New Zealand
Nandini Sundar & Ors v State of
Chattisgarh
227
Abortion Supervisory Committee v Right
To Life New Zealand Inc
Sandesh Bansal v Union of India & Ors
203
Chala Sani Abdula v The Queen
174
Clark & Ors v Registrar of the Manukau
District Court & Anor
185
Director of Human Rights Proceedings
v Henderson
246
Pakistan
President Balochistan High Court Bar
Association v Federation of Pakistan
& Ors
218
Samoa
Europe
United Kingdom
Adams, R (on the application of) v Secretary
of State for Justice
187
ANS & Anor v ML
131
Nnamdi v Attorney General
215
Ponifasio v Samoa Law Society
172
191
British Broadcasting Corporation (BBC) &
Anor, R (on the application of) v Ahmad
(Rev 1)
161
Burnip v Birmingham City Council
& Anor
147
E (Children), Re
123
G, R (on the application of) v X School
177
Greens & Ors, Re Application for Judicial
Review
136
HH & Ors v Deputy Prosecutor of the Italian
Republic, Genoa
240
Humphreys v Revenue and Customs
154
R (on the application of McDonald) v Royal
Borough of Kensington and Chelsea
200
Rabone & Anor v Pennine Care NHS
Foundation Trust
viii
233
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Editorial review
Welcome to an extended edition of Volume 8 of the Commonwealth Human Rights Law
Digest, which summarises cases decided by courts in 19 different Commonwealth jurisdictions across 27 major issues. The issue is a combined edition, including additional
cases to cover Issues 2 and 3, as well as the Index, due to the fact that interights is closing
down in May 2014. We are grateful to everyone who has supported, assisted and used the
Digest over the years, especially to the Commonwealth Secretariat and all current and past
members of the Editorial Board.
Commentary
Children
Several cases in this edition consider the rights of children. A case from India looks at the
issue of juvenile justice. Court on its Own Motion v Dept of Women and Child Development
& Ors, before the High Court, concerned the practice of placing juveniles in adult prisons.
The court held this could not be justified and breached domestic legislation. A system for
the proper verification of the age of any person lodged in jail who appeared to be a minor
was needed and such a system should include directions to obviate the recurrence of any
such cases.
Re J (A Child: Disclosure) before the Court of Appeal (Civil Division) (England and Wales)
in the United Kingdom concerned a case determining parental contact where an allegation of paedophilia had been made against one of the parties. The informant’s identity had
been kept secret, but the court held that despite concerns over the mental and physical
state of the informant, having weighed up the privacy rights on the one hand, and the
rights to a fair hearing and to private life on the other, it was more important for the case
to disclose the identity.
Another case from India considers the issue of children who were forcibly detained in
circuses. This amounted to a denial of their right to education and breached their right to
liberty and security. The Supreme Court in Bachpan Bachao Andolan v Union of India & Ors
ordered that the government issue suitable notifications prohibiting the employment of
children in circuses within two months from the date of the judgment.
The New Zealand Court of Appeal considered the rights of an unborn child in Abortion
Supervisory Committee v Right To Life New Zealand Inc and upheld the principle that at common law a foetus has no legal rights prior to birth and declared that the Bill of Rights Act
1990 was generally inapplicable.
In E (Children), Re, a case about the abduction of children by the mother and the removal to her country of nationality, which differed from the father’s, the United Kingdom
Supreme Court had to balance a variety of rights contained in different instruments to
determine what was in the best interests of the children – these instruments included
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editorial
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the Hague Convention on the Civil Aspects of Child Abduction 1980, the United Nations
Convention on the Rights of the Child and the European Convention on Human Rights.
Cruel. Inhuman or degrading treatment
Two cases concern the compliance by criminal justice systems with the right to be free
from cruel, inhuman or degrading treatment. In Greens & Ors, Re Application for Judicial
Review before the Court of Session (Outer House) in Scotland, United Kingdom, it was
held that the practice of requiring prisoners to empty the contents of chemical toilets in
their cells did not constitute cruel, inhuman or degrading treatment and accordingly did
not breach Article 3 of the European Convention on Human Rights. There was a breach
under Article 8, the right to a private life, when the scheme required prisoners to queue
and empty the toilets in public. The scheme had been changed prior to the judgment so
that this was no longer the case. On the other hand, the forcible taking of blood and saliva
samples by police from an individual was held to constitute cruel, inhuman or degrading
treatment by the High Court in Kenya in the case of Antony Murithi v OCS Meru Police
Station & Ors. The case also raised issues under rights to equality, dignity and fair hearing.
Death penalty
In a case from Trinidad & Tobago, the Judicial Committee of the Privy Council held
in Miguel v The State that the mandatory sentence for death was unconstitutional and
breached the right to be free from cruel, inhuman and degrading treatment.
Equality
Three cases all consider whether different types of discrimination against a certain class of
people can be justified by the state as reasonable or proportionate – in two of the cases it
was held that it could be and the relevant provision/behaviour was allowed to stand.
In Humphreys v Revenue and Customs the United Kingdom Supreme Court held that the
state’s refusal to split the child credit tax payment between two separated parents who
shared childcare was justified. It was claimed this constituted discrimination against men
but the court held the no-splitting rule was reasonable, as it was done in the belief that
making the payment to one household was efficient and effective.
A case from Hong Kong, Kong Yunming v The Director of Social Welfare, Yao Man Fai George
v The Director of Social Welfare, before the High Court, held that residency requirements
for social welfare were not unreasonable and did not breach the right to be free from discrimination.
On the other hand, in Moore v British Columbia (Education) the Supreme Court of Canada
held that discrimination against a child with a severe learning disability had taken place
because the intense remedial instruction he needed was not available in the public school
system. Interestingly, the court held that whilst there had been serious financial constraints on the public system, cuts had been disproportionately made to special needs
programmes and that no research into what alternatives there would be for students when
such programmes closed had been undertaken.
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editorial review
Expression
Freedom of Expression Institute v Chair, Complaints and Compliance Committee & Ors, a case
from the High Court in South Africa, considered the coverage of elections in Zimbabwe in
2005 and found that the South African Broadcasting Corporation had violated its duty to
provide impartial coverage. The court held that the broadcaster could not claim the same
level of freedom of expression as that of a private citizen or indeed another broadcaster,
as it was a publicly funded channel which had a duty to provide the highest standards of
journalism and unbiased news coverage.
In another case concerning a state broadcaster, R (on the application of BBC) & Anor v Secretary
of State for Justice, before the High Court of England and Wales in the United Kingdom, it was
held that the prohibition of an interview with a prisoner on remand was disproportionate.
Although permission for such interviews was usually refused, in exceptional circumstances
permission to broadcast could be granted, and the court held that the Secretary of State had
failed to put forward sufficient arguments to show why it should be refused in this case. The
public interest in the freedom of expression of the prisoner was strong.
The crime of defamation was held not to breach the constitutional right to freedom
of expression in Sullivan v Attorney General & Anor by the Constitutional Court of the
Seychelles. Such laws were necessary to protect innocent individuals from being defamed
or vilified.
Fair hearing
As in previous editions, the section on fair hearing covers a wide range of issues. The
Supreme Court in Canada held in R v Ahmad & Ors that a bar on disclosure of evidence
containing sensitive government information would not be prejudicial to a fair hearing.
The approach of a court to determine compensation for a miscarriage of justice was
considered by the United Kingdom Supreme Court in Adams, R (on the application of) v
Secretary of State for Justice. Denial of compensation in that particular case did not breach
the right to a fair trial under Article 6 of the European Convention on Human Rights.
Legal representation was considered in three cases. The Supreme Court of India case of
Mohd. Hussain @ Julfikar Ali v The State (Govt. of NCT) Delhi concerned an illiterate foreign
national who had been tried and convicted for crimes connected to a deadly explosion on a
bus. The Court held that he had not had the aid of counsel in any real sense during the trial
which prevented the effective cross-examination of witnesses. Accordingly, it could not be
held that he had had a fair hearing. In Clark & Ors v Registrar of the Manukau District Court
& Anor the Court of Appeal in New Zealand upheld the principle that an individual seeking
legal aid for representation could not have complete freedom to choose counsel and in G,
R (on the application of) v X School, the Supreme Court of the United Kingdom held that
legal representation was not required for a disciplinary hearing before school governors.
In a case concerning the ability of the accused to understand the proceedings, it was held
in Luc v R that the correct procedure concerning taking a statement to be used as evidence
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editorial review
from an individual who did not speak or understand the working language of the court
(which was English) was a clear breach of the Constitution. Accordingly the Court of Appeal
in the Bahamas quashed the subsequent conviction and sentence which had followed in the
lower court after the admission of the statement.
In HKSAR v Muhammad Riaz Khan the Court of Final Appeal in Hong Kong considered
the factors that allow a court to admit evidence which has been obtained in breach of
constitutional rights. Such evidence can be received if, upon careful examination of the
circumstances, its reception (a) is conducive to a fair trial, (b) is reconcilable with the
respect due to the right or rights concerned, and (c) appears unlikely to encourage any
future breaches of those rights.
Family life
The breadth of the definition of what constitutes family life is shown in the cases which
consider this right.
The High Court in Swaziland held that in a case of disputed paternity, the state could
require an individual to undergo tests to determine paternity, given the importance of the
overall aim for such tests in furthering family values. The case of Dlamini v Dlamini &
Anor shows how a state may interfere in the bodily integrity of an individual for such aims.
In CM v NG before the High Court (Western Cape) in South Africa, the custodial arrangements between a same-sex former couple were considered. The court held that one of the
parents (who had no biological link to the child) was entitled to continue seeing the child
as this was in the best interests of the child. There was clear evidence that the person has
been a parent to the child whilst in the relationship and was entitled to be a co-holder of
parental responsibilities now the relationship with the other parent had ended.
Another case from South Africa involved a co-habiting couple, one of whom died in a motor
vehicle accident. Damages were sought but were initially denied due to the argument
that there was no legal duty which had required the deceased to support the family. In
this case, Paixão & Anor v Road Accident Fund, the Supreme Court held that there was
a clear support of duty shown by the deceased and that accordingly damages should be
granted.
In ANS & Anor v ML, the Court of Session in Scotland, the United Kingdom, considered
whether the requirements for adoption were compliant with the right to family life under
Article 8 of the European Convention on Human Rights. In concluding that they were, the
court held that parental consent to an adoption was not necessarily needed if the child’s
best interests were not served by seeking such approval.
Health
A case concerning the provision of care from the local authority for an elderly lady was
considered by the United Kingdom Supreme Court in R (on the application of McDonald) v
Royal Borough of Kensington and Chelsea. The local authority had changed the care package,
removing the provision of a night time carer to assist the lady in using a commode, with
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editorial review
the provision of incontinence pads and sheeting. It was claimed this change breached the
right to a private life under Article 8 of the European Convention on Human Rights but
the court held that this was an appropriate change for the local authority to make as it was
a proportionate response to afford the maximum safety, privacy and independence while
also resulting in a substantial cost saving. The case has subsequently been appealed to the
European Court of Human Rights which agreed that the local authority had the discretion
to make such a decision, but did hold that Article 8 rights had been interfered with and
awarded damages to the individual.1 It is hoped this decision will mean that any future
changes to an individual’s care package will include full consideration of the potential
effect to their right to dignity.2
The health of pregnant mothers was considered by the High Court of Madhya Pradesh
Jabalpur in India in Sandesh Bansal v Union of India & Ors which held that the state had
failed to adequately implement a scheme to reduce maternal mortality. The court made a
number of recommendations to be followed, highlighting the primary duty of the government to ensure that every woman survives pregnancy and childbirth and the fact that the
state is under an obligation to secure mothers’ lives.
Housing
A case from Kenya concerned eviction notices given from the Council of Nairobi to
residents on an informal settlement requiring them to leave within 24 hours. In Susan
Waithera Kariuki & Ors v Town Clerk, Nairobi City Council & Ors the High Court held that
such notice was too short and the use of force to remove the residents after this time
period had expired was unjustified.
Information
A case from Canada looks at the role of information controlled by those in public office,
specifically the offices of the Prime Minister, the Minister of National Defence and the
Minister of Transport, the Royal Canadian Mounted Police and the Privy Council Office.
Whilst there is a statutory right of access to any record under the control of a government
institution, access to certain records owned by the above institutions had been denied in
regard to the first three, following a holding that ministerial entities were not government
institutions. This was upheld by the Supreme Court in Canada (Information Commissioner)
v Canada (Minister of National Defence).
Liberty & security
How long can the state detain a person once considered to have a mental illness but
who claims, with medical support, to be well enough to be released? This was the question the Supreme Court in Namibia was asked in the case of Gawanas v Government of
the Republic of Namibia. The court held that the state owes a patient a legal duty to take
reasonable steps to secure their release once their medical condition has improved to
the point that doctors consider their detention in an institution unnecessary and that
their release should be completed within a reasonable time. This had not happened in
this case and the court ordered that compensation should be available for the unlawful
detention.
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editorial review
In another case concerning unlawful detention and delay in release, Wendell Beckles
v Attorney General of Trinidad & Tobago & Anor, this time of a person kept in prison
after a judge had dismissed the charge against him, the High Court in Trinidad
and Tobago held that substantial damages were required to send a message to the
authorities that such a failure in the system would be treated seriously. In Nnamdi v
Attorney General the Supreme Court in Samoa considered the appropriate damages for
a person who had been unlawfully detained and suffered excessive force and assault
from police officers.
In President Balochistan High Court Bar Association v Federation of Pakistan & Ors the
Supreme Court in Pakistan considered the response to the unlawful abduction and imprisonment of individuals in Balochistan and held that the Constitution required the state to
undertake proper and thorough investigations into the cases.
The Supreme Court of Appeal in South Africa in the case of Mashilo & Anor v Prinsloo held
that the maximum time between arresting an individual and bringing him/her to court as
detailed in legislation should not be automatically applied, if he/she could be brought to
court sooner. Not to do so was deliberatively obstructive.
Life
The United Kingdom Supreme Court considered the duty owed by the state to an individual under Article 2 of the European Convention on Human Rights to protect life in
Rabone & Anor v Pennine Care NHS Foundation Trust. Reasonable steps to prevent the risk
of an individual committing suicide had not been taken and accordingly a case for damages could be made.
Access to medication for people with HIV/AIDS was considered by the High Court in Kenya
in Pao & Ors v Attorney General & Anor. Under domestic law, the Kenyan Government considered all generic medication to be counterfeit. A large percentage of people living with
HIV or Aids used such medication and accordingly the court held that such a presumption
about all generic medication could not be justified.
In another case from the United Kingdom. Re E (Medical Treatment: Anorexia), the Court
of Protection in England and Wales held that force-feeding of an individual could be justified where capacity was impaired and it was in the patient’s best interests, despite being
fed being against her wishes.
A case from the Supreme Court in India considers the role of non-professionals and youths
who had been appointed as special police officers in response to ongoing unrest and insurgency in a specific area. The court held in Nandini Sundar & Ors v State of Chattisgarh that
to use such people in a role with inadequate training was to expose them to unnecessary
danger. This breached their rights to equality of treatment and liberty and security.
Movement
Two cases look at the impact of movement between countries on children.
xiv
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editorial review
The case of HH & Ors v Deputy Prosecutor of the Italian Republic, Genoa highlights the issue
of the impact of children when their parents are the subject of extradition orders. The
Supreme Court considered the factors that need to be taken into consideration in such
cases to ensure the interests of the children are safeguarded to ensure compliance with
the right to a private life under Article 8 of the European Convention on Human Rights.
The Australian High Court held in Plaintiff M70/2011 v Minister for Immigration and
Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship that ministerial consent was required for the expulsion of children.
Political participation
A case from the Seychelles, Boulle v Government of Seychelles & Anor, assessed whether the
restriction on people who were detained in prison from voting was constitutional. The
Constitutional Court held that it was, being justified in order to enhance civil responsibility.
Private life
What happens to written information about individuals forms an important part of the
right to a private life, especially given the proliferation of electronic files and data sharing
and the advancement of technology in society today. The disclosure of medical records was
considered by the Human Rights Review Tribunal in New Zealand in the case of Director
of Human Rights Proceedings v Henderson where information about an individual’s history
as a drug user was shared with medical professionals at the individual’s place of employment. Such a disclosure was upheld as justified due to a perceived threat to the safety of
others that was serious and imminent.
The Court of Appeal in Hong Kong in the case of W v Registrar of Marriages held that
it was not unconstitutional to prevent a post-operative transsexual woman to marry
under her new gender. This decision was subsequently overturned by the Court of Final
Appeal.3
Property
In a case from India, Ghisalal v Dhapubai (D) By Lrs, which also concerned family life
rights, the Supreme Court held that a wife’s consent to adoption had to be proven by written evidence or by showing active participation in the adoption ceremony. As this could
not be established in this case, this prevented the son from claiming a right to property left
by his adopted father to his wife and since passed on.
Religion
The role of religion in the education system was considered in a case from Canada. In
SL v Commission Scolaire Des Chênes the Supreme Court was asked to determine if individuals could seek to be exempt from mandatory religious and moral instruction under
the grounds that this might cause potential serious harm to children. The court held that
whilst a regional government could not set up a system which favoured or hindered any
one religion, exposing students to a comprehensive presentation of various religions
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editorial review
without forcing children to join them would not constitute an indoctrination of students
which would infringe the right to freedom of religion.
Sexuality
A significant case from the High Court in Australia developed the rights of people who had
undertaken gender reassignment. AB v Western Australia; AH v Western Australia held that
people who had undergone medical or surgical procedures had the right for their gender
to be legally recognised, even if complete surgery had not occurred. See also W v Registrar
of Marriages under Private Life.
Women
The definition of domestic violence was extended in a significant case from the Supreme
Court in the United Kingdom, Yemshaw v London Borough of Hounslow. The court held
that restricting the meaning to just include physical violence was not appropriate. The
test for determining if there was domestic violence should always be the view of the
objective outsider, but should consider the specific facts, circumstances and personalities of the people involved. In this case, the threat of violence against a woman was
deemed to be included in the definition of domestic violence, and accordingly she was
entitled to be considered as homeless and in need of support from the local authority.
Two cases from Kenya consider women’s rights and property rights. In Samson Kiogora
Rukunga v Zipporah Gaiti Rukunga the High Court held that the marital status was not
relevant to deny a woman the right to inherit her parents’ estate. In Katam v Chepkwony &
Anor, the High Court recognised the validity of a same sex female marriage and held that
the surviving wife could claim the inheritance left to her.
1. McDonald v the United Kingdom (application no. 4241/12).
3. W v the Registrar of Marriages [2013] HKCFA 39.
2. See <http://www.theguardian.com/law/2014/may/20/
european-court-disabled-woman-night-care>.
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Summaries
of judicial
decisions
children
Children
abduction | adjudication of dispute | best interests | return to country of
habitual residence justified
E (CHILDREN), RE
supreme court
lord hope, lord walker, lady hale,
lord kerr and lord wilson
united kingdom
10 jun 2011
Two young girls were abducted by their British mother, M. M was married to the girls’
Norwegian father, F. The family lived in Norway until M brought the two girls to the United
Kingdom in September 2010, without the knowledge or consent of F. M’s eldest daughter,
T, not F’s child, lived with the family in Norway initially, but came to live in the United
Kingdom shortly before M left with the two girls. Following the removal of the two girls
from Norway, F applied to the Norwegian central authority under the Hague Convention
on the Civil Aspects of Child Abduction 1980 (‘the Hague Convention’) for the return of his
two daughters to Norway. Article 12 of the Hague Convention requires the state to which
the abductor has travelled to return a child forthwith to her country of habitual residence if
she has been wrongfully removed in breach of rights of custody, while Article 13b provides
an exception to this obligation where ‘there is a grave risk that [the return of the child] would
expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. M sought to rely on this exception, claiming that while living in Norway, F
was physically violent towards other people, property and the family pets. M further alleged
that F was controlling and domineering, to the extent that the young girls were frightened
of him. Psychiatric evidence was presented to the effect that the mother suffered from a
mental disorder which would deteriorate should she return to Norway with the children
unless certain protective measures were put in place. T supported M’s claims and F denied
them. In addition to the Article 13b exception, M also argued that Article 13b of the Hague
Convention should be interpreted in light of Article 3.1 of the United Nations Convention
on the Rights of the Child (‘the UNCRC’) which requires all child-related actions to be considered with the best interests of the child as a priority. The trial judge in England decided
that it was in the best interests of the children for their future to be determined back in
Norway. The Court of Appeal rejected the mother’s subsequent appeal. Both the Court of
Appeal and the Supreme Court agreed to hear the case given the need to address concerns
about the impact of the recent case of Neulinger and Shuruk v Switzerland [2011] 1 FLR 122.
In dismissing the appeal and ordering the return of the two girls to Norway, it was held that:
(1) The Article 13b exception to the obligation to return is intentionally limited in its scope
and should be applied without extra interpretation or gloss. Abusive behaviour and
violence may well constitute a grave risk to the wellbeing of children. However, where
factual investigations are required to conclude the truthfulness of disputed allegations, the home state and not the requesting state is in the best position to conduct
such a review accurately. Where the situation cannot therefore be viewed objectively
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children
by the requesting state, the focus of the proceedings must turn to the appropriateness
and sufficiency of safeguards which can be put in place on return of the children to
the home state. The clearer the need for protection, the more effective the measures
will have to be. In this case, the trial judge was satisfied that medical treatment for the
mother and protective safeguards for the children were available, and it was not the
task of an appellate court to disagree on a substantive basis with such an assessment.
(2) The key underpinning of the Hague Convention is what is in the best interests of the
child. The aim is to serve the interests of children in a general sense by the deterrence of
wrongful abduction. European Court of Human Rights case law indicates that the right
to respect for family life under Article 8 of the European Convention on Human Rights
(‘the ECHR’) must be interpreted in light of the Hague Convention and the UNCRC, i.e.
what is in the best interests of the child. This has two aspects: being reunited with parents
as soon as possible such that one parent does not gain an unfair advantage over the other;
and secondly that the child is brought up in a ‘sound environment’ safe from harm.
(3)In Neulinger (above), the Grand Chamber held that the child’s return from Switzerland
to Israel would breach Article 8 of the ECHR. In so doing, the Grand Chamber
appeared to conduct a full-scale substantive review of the potential future life of the
child in the requested state, hence seeming to depart from the swift summary proceedings envisaged by the Hague Convention. However, the facts of that case were
specific and therefore Neulinger (above) does set a precedent for a departure from the
normal summary proceedings, provided that the decision is not arbitrary. In addition,
the President of the Strasbourg court has extra-judicially clarified that ‘the logic of the
Hague Convention is that a child who has been abducted should be returned to the
jurisdiction best-placed to protect his interests and welfare, and it is only there that his
situation should be reviewed in full’.
Per Lady Hale and Lord Wilson concurring:
(1) The first object of the Hague Convention is to deter either parent (or indeed anyone
else) from taking the law into their own hands and pre-empting the result of any dispute
between them about the future upbringing of their children. If an abduction does take
place, the next object is to restore the children as soon as possible to their home country,
so that any dispute can be determined there. The left-behind parent should not be put to
the trouble and expense of coming to the requested state in order for factual disputes to be
resolved there. There almost always is a factual dispute, if not about the primary care of the
children, then usually about where they should live, and in cases where domestic abuse is
alleged, about whether those allegations are well-founded. Factual disputes of this nature
are likely to be better able to be resolved in the country where the family had its home.
(2) As the President of the Strasbourg court has acknowledged extra-judicially (in a paper
given at the Franco-British-Irish Colloque on family law on 14 May 2011), it is possible
to read paragraph 139 of Neulinger as requiring national courts to abandon the swift
summary approach that the Hague Convention envisages and to move away from
a restrictive interpretation of the Article 13 exceptions to a thorough, free-standing
assessment of the overall merits of the situation. However, he says, ‘that is over-broad –
the statement is expressly made in the specific context of proceedings for the return
of an abducted child. The logic of the Hague Convention is that a child who has been
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children
abducted should be returned to the jurisdiction best-placed to protect his interests and
welfare, and it is only there that his situation should be reviewed in full’.
(3) The authorities of the requested state are not to conduct their own investigation and
evaluation of what will be best for the child (as per Thorpe LJ in Re D (A Child)
(Abduction: Rights of Custody) [2006] UKHL 51). There is a particular risk that an
expansive application of Article 13b of the Hague Convention, which focuses on the
situation of the child, could lead to this result.
(4) Article 13b of the Hague Convention is looking to the future as in the situation as it
would be if the child were to be returned forthwith to his/her home country. As has
often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested his/her return, although of course
it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures
which can be put in place to secure that the child will not be called upon to face an
intolerable situation when he/she gets home.
(5) There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are
in fact true. Where allegations of domestic abuse are made, the court should first ask
whether, if they are true, there would be a grave risk that the child would be exposed
to physical or psychological harm or otherwise placed in an intolerable situation. If so,
the court must then ask how the child can be protected against the risk.
(6) This situation undoubtedly engages T’s Article 8 rights, as well as the obligation under
Article 3.1 of UNCRC to make her welfare a primary consideration. But in the overall
balance of all the Article 8 and Article 3.1 rights involved, the interference with her
rights can readily be justified in the interests of the rights of others, and in particular
those of her little sisters. She is at an age when she might well have left to come to
college in this country whatever the situation at home and she will have ample opportunities to stay in close touch with her mother and her sisters whether they remain in
Norway or, as she and her mother hope, eventually move lawfully to this country.
for the appellant: henry setright qc and david williams; instructed by freemans
solicitors
for the first respondent: james turner qc and ian cook; instructed by tlt llp
for the second respondent (t): baroness scotland qc and edward devereux;
instructed by dawson cornwell
for the intervener the aire centre: deirdre fottrell and radhika handa;
instructed by mishcon de reya
for the intervener reunite international: richard harrison and jennifer perrins; instructed by bindmans llp
for the intervener women’s aid federation of england: stephen knafler qc, teertha gupta, irena sabic and neil jeffs; instructed by sternberg reed
[2011] UKSC 27, [2011] Fam Law 919, [2011] 2 FLR 758, [2011] 2 FCR 419, [2011] 2 WLR 1326, [2011] 4 All ER 517,
[2011] HRLR 32, [2012] 1 AC 144, [2011] UKSC 27, [2011] UKHRR 701, [2012] AC 144
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children
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2011/27.html
adoption | parental consent | not required where child’s best interests not
served | See family life – Ans & Anor v ML
detention | juvenile justice | continuing obligation on state to prevent juvenile
imprisonment
COURT ON ITS OWN MOTION V DEPT OF WOMEN AND CHILD DEVELOPMENT
& ORS
high court
sikri cj and endlaw j
india
11 may 2012
Five advocates, including A, N and V (acting on behalf of the International Bridges of
Justice (‘IBJ’)) and representatives of Child Rights petitioned to the High Court in relation
to the practice of the New Delhi authorities placing juveniles in adult prisons. The petitioners claimed that when persons are arrested by the police they are automatically lodged
in adult jails without proper care being taken to find out whether the person concerned is
a juvenile or an adult. They used the Right to Information Act 2005 to obtain information
which disclosed that 114 imprisoned offenders were juveniles.1 An application was filed by
IBJ who submitted that jails specifically meant for offenders between the ages of 18 and
21 years now housed prisoners below 18 years of age. An order was issued to conduct an
enquiry into the ages of the persons lodged in Tihar Jail.
The National Commission for Protection of Child Rights (‘NCPCR’) and Delhi Legal Services
Authority (‘DLSA’) conducted the enquiry and found that more than 100 prisoners were
under 18 years old at the time of their arrest. The High Court was informed of these findings
and on 21 March 2012 issued a further order which laid down comprehensive guidelines and
policy, and gave directions to the various authorities as to how to deal with such cases. It also
gave directions based on the suggestions made by Ms Anuradha Shukla Bhardwaj, principal
magistrate in the case of State v Rahul (FIR No. 269/2011), who suggested that authorities
question offenders about their identity and previous criminality. Supplemental directions/
clarifications were issued on 2 May 2012 which drew magistrates’ attention to s 72 of the
Juvenile Justice (Care and Protection of Children) Act 2000 (‘the JJA’) and Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules 2009,3 and reminded them that it
is their responsibility to hold preliminary enquiries as to the age of young persons arrested.
In dismissing the petition and finding that the prevention of juvenile imprisonment is a
continuing obligation, it was held that:
(1) A separate adjudicating and treatment mechanism for offenders aged under 18 is
already in existence. The basis of this is that juveniles are different from adults; their
immaturity means they are easily influenced by others and suffer from a lack of judgement. Young people are therefore believed to be less blameworthy than adults.4
(2) The object and purpose of the JJA is the young offender’s protection, reformation and
rehabilitation. Lodging juveniles in adult prisons alongside hardened adult criminals
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children
can have drastic implications on the physical and mental wellbeing of a juvenile
offender and thus is totally against the object and purpose of the JJA (Pratap Singh v
State of Jharkand (2005) 3 SCC 55 considered).
(3) Adult prisons lack facilities and staff to resolve the needs of imprisoned young offenders. Consequently, young offenders who are sent to adult prisons are more likely to
reoffend and escalate into violent behaviour in comparison to young offenders who
enter the juvenile system.
(4) Personal liberty is one of the oldest concepts to be protected by national courts (English
Magna Carta, 1215).5 There can be no objections to the statement that placing juveniles
in adult prisons is a deprivation of their personal freedom and so is clearly a violation
of their fundamental rights guaranteed under Article 21 of the Constitution of India.6
(5) A system for the proper verification of the age of any person lodged in jail who appears to
be a minor is needed and should include directions to obviate the recurrence of any such
cases. After the implementation of the directions, a report on compliance is to be submitted to the High Court every six months by the police and copies sent to NCPCR and DLSA.
(6) On judgment, specific directions and guidelines were issued to the respondents and
other similar authorities to remedy the incarceration of children. The judge submitted
that the directions would require accountability by officers and would include training
for magistrates, judicial officers, police and others. The identification and verification
of offenders between 18 and 21 years old will be a continuing process.
for the petitioner: anant asthana, minna kabir (child rights and legal aid
worker), bharti ali (centre for child rights) and ajay verma (for ibj)
for the respondents: shobhna takiar and indrani ghosh (for gnctd and tihar
jail); asha menon and digvijay singh (for dlsa)
for the intervener: anu narula
WP(C) No. 8889 of 2011
Full text of judgment available at http://hrln.org/hrln/images/stories/pdf/Delhi-HighCourt-Judgment-dated-110512.pdf
education | duty to prohibit employment in circuses | See Bachpan Bachao Andolan v Union Of
India & Ors
labour | circuses | duty to prohibit
BACHPAN BACHAO ANDOLAN V UNION OF INDIA & ORS
supreme court
bhandari and patnaik jj
8 CHRLD
india
18 apr 2011
127
children
This was a petition by Bachpan Bachao Andolan filed in the public interest under Article
32 of the Indian Constitution in the wake of serious violations and abuses of children who
were forcefully detained in circuses, in many instances under extreme inhuman conditions. The petitioner had previously held meetings with the circus owners in 2003 in order
to stop the abuse of the children in circuses but the owner’s response was poor.
The petitioner claimed the employment of children in circuses resulted in many legal violations including, inter alia: Article 21A of the Constitution, the Employment of Children’s Act
1938, the Children (Placing of Labour) Act 1933 and the Prevention of Immoral Traffic Act.
The petitioner petitioned for the issue of a writ of mandamus or any other appropriate
writ, order or direction:
• directing the respondents to frame appropriate guidelines for the persons engaged in
circuses.
• directing the respondents to conduct simultaneous raids in all the circuses by the
Central Bureau of Investigations (‘the CBI’) to liberate the children and to check the
gross violation of all fundamental rights of the children.
• appointing special forces at the borders of India to check and prevent cross-border
trafficking.
• applying the provisions of the Juvenile Justice (Care and Protection of Children) Act
2000, to make intra-state trafficking of young children, their bondage, forcible confinement, sexual harassment and sexual abuse cognisable offences under the Indian Penal
Code as well as under s 31 of the Juvenile Justice (Care and Protection of Children) Act.
• empowering child welfare committees under the Juvenile Justice (Care and Protection
of Children) Act 2000 to award compensation to all those victims rescued from the
circuses with a rehabilitation package to be implemented and, in addition, the State
Government to create a fund for the same.
• determining a clear set of guidelines prohibiting the employment/engagement of children up to the age of 18 years in any form of circus.
In upholding the petition, it was held that:
Per Bhandari J:
(1) In order to implement the fundamental right of children to education under Article
21A of the Constitution it is imperative that the Central Government of India issue
suitable notifications prohibiting the employment of children in circuses within two
months from the date of this judgment (18 April 2011).
(2) The respondents are directed to conduct simultaneous raids in all of the circuses it
is aware of to liberate the children and to check that the fundamental rights of the
children are not being violated. The rescued children should be kept in Care and
Protective Homes until they attain the age of 18 years.
(3) The respondents are also directed to talk to the parents of the children and, in cases
where the families are willing to take their children back into their homes, they may
be directed to do so only after proper verification.
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children
(4) The respondents are directed to create a proper scheme of rehabilitation for the rescued children from these circuses.
(5) The Secretary of the Ministry of Human Resources Development and the Department
of Women and Child Development is directed to file a comprehensive affidavit of
compliance within ten weeks.
for the first respondent: solicitor general g subramanium
[2011] INSC 403
Full text of judgment: http://www.liiofindia.org/in/cases/cen/INSC/2011/403.html
parental contact | allegation of paedophilia | disclosure of informant’s iden­tity
| impact on health outweighed by importance for party’s case
RE J (A CHILD: DISCLOSURE)
court of appeal (civil division) (england & wales)
thorpe lj, hallett lj and mcfarlane lj
united kingdom
21 sep 2012
A is a child aged ten years whose parents separated when A was six months old. Following
the separation, A’s father returned to his home country, Australia. The father applied for
an order to have contact with A in the County Court. This order was granted and allowed
A to stay with her father for a total of six weeks per year, starting from February 2010. In
March 2010, the mother of A was contacted by local authority social workers and informed
that a young person, X, had made serious allegations of sexual abuse against the father. X
alleged that the father had sexually abused her over a period of years starting when she was
much younger. The father denied any knowledge of the allegations. Although the mother
was not told about the details of the allegations, or X’s identity, she was told by the authority that the allegations were ‘credible’ and that A should not have unsupervised contact
with her father. In May 2010, the mother applied to vary the contact order between A and
her father to restrict future contact to shorter, supervised periods.
The question of whether the local authority should be required to disclose the identity of X
and/or the details of X’s allegations to the court, the parents and the ‘children’s guardian’
(appointed to represent A’s interests) stalled at the County Court. The issue of disclosure
came before Mr Justice Peter Jackson in September 2011, but the hearing was adjourned so
that X’s position could be further clarified. Medical reports from X’s doctor explained that
if X was to disclose her identity and give information on her allegations, this would have
a severe impact on her mental and physical state as she was already undergoing health
problems which have a serious effect on her daily life. In January 2012, Jackson J heard
submission on or on behalf of both parents. In a judgment handed down in February
2012, the judge dismissed the parents’ and A’s application for disclosure of X due to the
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children
negative impact that this would have on her and also discussed that her disclosure may not
lead to anything substantial for A.
The following Articles of the European Convention on Human Rights (‘the ECHR’) were
considered when making a decision: Article 3 (no one shall be subjected to torture or to
inhuman or degrading treatment or punishment),7 Article 6 (everyone is entitled to a fair
and public hearing)8 and Article 8 (everyone has the right to respect for his private and
family life, his home and his correspondence, and there shall be no interference by a public authority with the exercise of this right).9 By a Notice of Appeal filed on 11 May 2012, A’s
guardian sought to overturn that decision.
It was held that disclosure would cause significant harm to X’s mental and physical health.
The interests of X (and X’s Article 8 rights) would benefit from non-disclosure, but the interests of A and A’s parents (and their Article 6 and 8 rights) favour disclosure. It was in A’s
interests that the material was known to her parents and was properly tested. There was a
balance to be struck between the adverse impact on X’s interest and the benefit to be gained
by A. The opportunity for both parents to see and respond to the material presented by X
was central to the issue of contact and the life-long structure of relationships within A’s family. Consequently, it was decided that the disclosure of X’s identity and of the records of her
sexual abuse allegations were to be disclosed to the mother, the father and A’s children’s
guardian.
In dismissing the appeal to the Court of Appeal, it was held that:
Per McFarlane LJ (Hallett LJ and Thorpe LJ concurring):
(1) Disclosing information on X’s identity and the records of the substance of her sexual
abuse allegations against A’s father strikes the correct constitutional balance between
A, her parents and X.
(2) There were two approaches to be adopted depending on whether disclosure was or
was not ordered. Either the sensitive material (or significant part of it) is disclosed to
the parties and the case continues with the judge who has dealt with the disclosure
issue, or, on the other hand, the sensitive material is not disclosed and the case is tried
by a different judge who has not been exposed to the confidential material (and hence
is in the same state of ignorance as the father).
(3) It is essential to strike a balance between these two options in order to protect the
welfare of A.
(4) No right within the ECHR has automatic precedence over any other (Campbell v
MGN Ltd [2004] UKHL 22, [2004] AC 457 and Re S (Identification: Restrictions on
Publication) [2004] UKHL 47 applied).
(5) The rights of A and each of her parents are engaged under both Article 6 and Article
8 which point towards disclosure of sensitive material. Case law provides a stronger
argument for disclosure of information when balancing these rights (Re B (A Minor)
(Disclosure of Evidence) [1993] 1 FLR 191 considered).
(6) Additionally, A’s Article 3 rights must be taken into consideration as A risks being
exposed to sexual abuse, and X risks being exposed to inhuman treatment which
would impact on her mental and physical health if she were required to give evidence.
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children
(7) The impact of disclosure on X is the only substantial factor against disclosure in
this case. A’s mother seeks to protect her child, and assumes that X’s allegations
concerning the father’s abuse were credible. The father’s position is to ensure
allegations are properly investigated and evaluated within the court process. A’s
guardian’s position is to ensure that A’s safety and well-being is protected.
(8) The court took the view, therefore, that a balance must be struck between respect for
X’s Article 8 rights on the one hand and the Article 6 and 8 rights of A and her parents
on the other. A’s interests and those of her parents are central to the issue of contact
by the father which is subject to the undisclosed material of X.
(9) The case for non-disclosure must be ‘convincingly and compellingly demonstrated’ and will only be sanctioned where ‘the situation imperatively demands it’ (Re B
(Disclosure to Other Parties) [2001] 2 FLR 1017 applied).
(10)The fact that X’s mental and physical state is expected to worsen as a result of the
disclosure is outweighed by the importance of the disclosure of X’s identity and of the
substance of the sexual abuse allegations.
for z county council: mr roger mccarthy qc and miss kate purkiss; instructed by
z county council legal department
for the children’s guardian: mr paul storey qc and ms camille habboo; instructed by blackfords llp
for the intervener x: ms sarah morgan qc and mr andrew bagchi; instructed by
russell cooke solicitors
[2012] EWCA Civ 1204
Full text of judgment available at http://www.bailii.org/ew/cases/ewca/civ/2012/1204.html
parental contact | continued relationship with same-sex former partner of
parent in best interests | See family life – cm v ng
unborn child | rights | bill of rights not generally applicable | right to life
ABORTION SUPERVISORY COMMITTEE V RIGHT TO LIFE NEW ZEALAND INC
court of appeal
chambers, arnold and stevens jj
new zealand
1 jun 2011
The Abortion Supervisory Committee (‘the ASC’) was responsible for overseeing the provisions and application of abortion law in New Zealand. Right to Life New Zealand Inc (‘RTL’)
initiated judicial review proceedings against the ASC on the basis that (1) the ASC failed to
adequately perform its statutory function of overseeing the provisions and application of abortion law and (2) the ASC failed to adequately audit the activities of certifying consultants who
8 CHRLD
131
children
authorise abortions. RTL was concerned that abortions were being granted more liberally
than Parliament had intended. In the High Court, Miller J concluded that there was reason to doubt the lawfulness of many abortions authorised by certifying consultants. Miller J
held that the ASC’s belief that it was unable to review the decisions of certifying consultants
was a misinterpretation of its statutory functions and powers and that the ASC did have the
authority to review the lawfulness of certifying consultants’ decisions. Costs were awarded to
RTL. The ASC appealed against the High Court judgment and the cost decision, raising the
following principal grounds for appeal: (a) the Court lacked jurisdiction to consider whether
certifying consultants were obeying abortion law; and (b) if there was jurisdiction, there was
no evidential foundation to support Miller J’s findings regarding the lawfulness of abortions.
In the High Court judgment, Miller J also considered whether there is an express right
to life for unborn children. Miller J held that that there is no express right to life for an
unborn child (applying Wall v Livingston10). RTL cross-appealed against Miller J’s finding
in the Court of Appeal.
In allowing the appeal by the ASC and dismissing the cross-appeal by RTL, it was held that:
Per Chambers and Stevens JJ:
(1) In relation to (a) above, it was held that none of the functions or powers of the ASC as
set out in s 3611 of the Contraception, Sterilisation and Abortion Act 1977 (‘the CSA Act’)
empower the ASC to review the decisions of certifying consultants in relation to either the
authorisation or refusal of an abortion in individual cases. These issues would normally
be considered by the Medical Council and the Health and Disciplinary Commissioner.
The ASC does not have express statutory powers to investigate the decisions of certifying consultants; its statutory functions are silent on such matters. Section 3612 does not
empower the ASC to review the decisions of certifying consultants but merely allows the
ASC to assess from time to time what records it requires for its purposes and functions.
(2) In relation to (b) above, it was held that Miller J’s observation (in the High Court) that
the statistics and the ASC’s comments over the years ‘give rise to powerful misgivings
about the lawfulness of many abortions’ was inappropriate and that no such findings
should have been made.
(3) In relation to RTL’s cross-appeal, it was held (following Miller J’s decision in the High
Court) that there is no basis in the CSA Act for an express right to life for an unborn
child. The CSA Act creates no express rights for the unborn child (Wall v Livingston
[1982] 1 NZLR 734 (CA) applied). At common law a foetus has no legal rights prior to
birth. A foetus’s rights are inseparable from the rights of its mother. Very few of the
rights in s 813 of the New Zealand Bill of Rights Act 1990 could be exercised by or on
behalf of an unborn child.
Per Arnold J dissenting in part:
(1) Section 1414 of the CSA Act contemplates that the ASC has a function to review the
way in which certifying consultants perform their role under the CSA Act. The ASC
is entitled to review the work of certifying consultants in an effort to assess whether
or not they are approaching their task in a neutral fashion. Certifying consultants
have a central role in the statutory scheme, so therefore it seems implausible that
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children
Parliament would have intended to preclude the ASC from reviewing the way in
which they performed their role. The Medical Council and the Health and Disciplinary
Commissioner are not appropriate channels for investigations of issues of non-compliance as these processes are directed at different issues. The ASC reviews the work
of certifying consultants to report to Parliament on the operation of the CSA Act as
a whole and in order to make reappointment or revocation decisions. The ASC is
not attempting to determine the legality of abortions but rather is making decisions
consistently with the tenor of the CSA Act – namely, whether its decision-making is
broadly consistent across the country.
(2) There is no basis in the CSA Act for an express right to life for an unborn child.
for the appellant: c r gwyn and w l aldred; instructed by crown law office,
wellington
for the respondent: p d mckenzie qc and i c bassett; instructed by p j doody,
christchurch
[2011] NZCA 246
Full text of judgment available at http://www.commonlii.org/nz/cases/NZCA/2011/246.html
1. Article 3(1) provides: ‘Subject to the provisions of this Act
all citizens shall have the right to information.’
2. Section 7 (Procedure to be followed by a Magistrate not
empowered under the Act) provides: ‘(1) When any Magistrate
not empowered to exercise the powers of a Board under this
Act is of the opinion that a person brought before him under
any of the provisions of this Act (other than for the purpose
of giving evidence), is a juvenile or the child, he shall without
any delay record such opinion and forward the juvenile or
the child and the record of the proceeding to the competent
authority having jurisdiction over the proceeding. (2) The
competent authority to which the proceeding is forwarded
under sub-section (1) shall hold the inquiry as if the juvenile
or the child had originally been brought before it.’
3. Rule 12(1) provides: ‘In every case concerning a child or a
juvenile in conflict with law, the court or the Board or as the
case may be the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or child or a
juvenile in conflict with law within a period of thirty days
from the date of making of the application for that purpose.’
4. John Pitts, ‘Youth Justice in England and Wales, New
Politics of Crime and Punishment’ edited by Roger
Matthews (Willian Publishing) p.71.
5. English Magna Carta provides: ‘No free man shall be taken
or imprisoned…but…by law of the land.’
6. Article 21 provides: ‘No person shall be deprived of his life
or personal liberty except according to procedure established
by law.’
7. Article 3 provides: ‘No one shall be subjected to torture or
to inhuman or degrading treatment or punishment.’
8. Article 6 provides: ‘(1) In the determination of his civil
rights and obligations or of any criminal charge against
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him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of
the trial in the interest of morals, public order or national
security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice. (2) Everyone charged
with a criminal offence shall be presumed innocent until
proved guilty according to law. (3) Everyone charged with a
criminal offence has the following minimum rights: to be
informed promptly, in a language which he understands
and in detail: (a) of the nature and cause of the accusation
against him; (b) to have adequate time and facilities for the
preparation of his defence; (c) to defend himself in person
or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require; (d) to examine
or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him; (e) to have the
free assistance of an interpreter if he cannot understand or
speak the language used in court.’
9. Article 8 provides: ‘(1) Everyone has the right to respect for
his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.’
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children
|
cruel, inhuman or
degrading treatment
10. [1982] 1 NZLR 734 (CA).
11. Section 36 provides that ‘every certifying consultant shall
keep records and submit to the Supervisory Committee
such reports relating to cases considered by him and the
performance of his functions in relation to such cases as the
Supervisory Committee may from time to time require.’
13. The right not to be deprived of life states: ‘No one shall
be deprived of life except on such grounds as are established
by law and are consistent with the principles of fundamental
justice.’
14. Section 14 lists the functions and powers of the
Supervisory Committee.
12. Ibid.
Cruel, inhuman or
degrading treatment
blood and saliva sample | taking through use of force unacceptable | evidence
obtained in breach of right inadmissible
ANTONY MURITHI V OCS MERU POLICE STATION & ORS
high court (meru)
makau j
kenya
2 feb 2012
M claimed that on 10 June 2011 he was arrested by police officers from Meru Police Station
for allegedly having committed an offence of rape on 13 May 2011 and was denied access to
his advocate. On 12 June he was taken to Meru General Hospital with his legs and hands
handcuffed. He was not told why he was there. The officers forcibly took blood and saliva
samples in violation of his constitutional rights to: (1) freedom from torture and cruel,
inhuman or degrading treatment or punishment as secured by Articles 27, 22(1), 23(1), 49
and 258(1) of the Constitution; (2) equality before the law; and (3) dignity without giving a
reason why. Three days after his arrest, on 13 June 2011, M was charged with rape.
On 25 July 2011 when M’s case came up for hearing, the prosecution applied for an adjournment so as to source a report from the government chemist. M alleged he knew nothing
about this report. The respondents were served with this application to adjourn proceedings and as a result they did not appear for the hearing on 6 December. Despite this, the
matter was ordered to proceed.
In response to the prosecution’s adjournment M sought, under Prayer 3 of the application,
an injunction restraining the respondents from using data obtained from the blood and
saliva samples taken from him on 12 June 2011. The court granted the injunction and held
that the taking of such samples breached M’s human rights.
In allowing the petition and finding that the Constitution was violated, it was held that:
(1) Under Article 27 of the Constitution, the fundamental rights and freedoms that may
not be limited include freedom from torture and cruel, inhuman or degrading treatment or punishment. The handcuffing of an accused’s hands and legs and transporting
him, without explanation, would be deemed to constitute a violation of this Article.
(2) Article 27(1)-(2) of the Constitution provides that everyone is equal before the law.
Failing to inform an arrested person of his rights would be deemed to be discrimination
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cruel, inhuman or degrading treatment
under Article 49 of the Constitution. Any accused person should be informed promptly in a language he or she understands of the reasons for their arrest. They should
also be given the right to remain silent and the consequences of not remaining silent
should be carefully explained to them. Any accused person should also be allowed to
communicate with an advocate and should not be compelled to make any confession
or admission that could be used in evidence against them.
(3) Denying the rights of an arrested person is unconstitutional under Article 28 of the
Constitution. The Constitution provides that ‘every person has inherent dignity and the
right to have that dignity respected and protected’. Handcuffing an accused person’s
hands and legs and forcibly using a syringe to take blood and saliva samples without
any explanation is a breach of their right to dignity and is therefore unconstitutional.
(4) Under Article 22(1) of the Constitution, every person is given a right to institute court
proceedings to enforce his constitutional rights and the High Court has jurisdiction to
determine such matters by virtue of Article 23. Under Article 23(3) of the Constitution,
in any proceedings brought under Article 22 the court may grant appropriate relief,
including a declaration of rights, an injunction, an order for compensation and/or an
order of judicial review.
(5) Under Article 258 of the Constitution every person has a right to institute court proceedings claiming that the Constitution has been contravened or is threatened with
contravention. This Article is intended to ensure the Constitution is not contravened.
(6) In the circumstances of this case, samples of M’s blood and saliva were obtained without his consent. It was held that the samples were obtained by assault as the syringe
used to extract his blood was administered through force. It was held, therefore, that
the samples were obtained through illegal means and thus could not be used in any
proceedings against the person whose fundamental rights and freedoms as enshrined
in the Constitution had been breached.
(7) Any evidence obtained through assault, torture, inhuman or degrading treatment or
through punishment is a violation, denial and infringement of a person’s right of fundamental freedoms under the bill of rights. It is therefore unconstitutional and void for
all purposes and cannot, as a result, be used in evidence against such a person. In this
application, M’s constitutional rights were denied and infringed by the respondents; the
evidence obtained by them in breach of his rights was therefore deemed inadmissible.
for the petitioner: mr muriuki
[2012] eKLR (Petition No. 79 of 2011)
Full text of judgment available at http://kenyalaw.org/downloads_freecases/84704.pdf
death penalty | mandatory sentence unconstitutional | See death penalty – Miguel v
The State
detention | prison conditions | sanitation | requirement to empty chemical toi­let
objectionable but no breach of right
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cruel, inhuman or degrading treatment
GREENS & ORS, RE APPLICATION FOR JUDICIAL REVIEW
court of session, outer house (scotland)
lady dorrian
united kingdom
12 may 2011
G, S and W were prisoners incarcerated in Peterhead prison. They petitioned for judicial
review on the basis that their human rights were infringed by the conditions of their imprisonment due to the lack of flushing toilets in their cells; the use of chemical toilets; and
‘slopping out’, a practice whereby prisoners had to empty the contents of the chemical toilets (i.e. the accumulated waste products) in a communal latrine. The prisoners argued that
these conditions amounted to inhuman or degrading treatment contrary to Article 3 of the
European Convention on Human Rights (‘the Convention’) and were an unjustified interference with their right to respect for their private lives, contrary to Article 8 of the Convention.1
Each of the prisoners had their own cell and were allowed numerous personal possessions, including televisions and reading materials. While it was admitted that ventilation
and natural lighting in the cell blocks could be improved, each of the prisoners spent a
good deal of time outside of their cells every day, engaged in activities ranging from paid
employment to classroom study.
During the period under consideration, the prison instituted ‘work parties’ that were employed
to manage the slopping out of all chemical toilets in a particular block. Prior to this, each prisoner was responsible for slopping out their own toilet. Given the number of inmates, this
procedure often involved a lengthy queue in which prisoners would have to hold the accumulated waste of the chemical toilet while waiting to empty their toilet receptacle.
In dismissing the petition in part, it was held that:
(1) Access to a flushing toilet is not a basic human right and to require a prisoner to use
any receptacle other than a screened and flushing toilet does not, by itself, constitute
a breach of Article 3 of the Convention.
(2) With the exception of cells of a size allowing less than about three square metres
per person, taking only one aspect of prison conditions into consideration will not
be sufficiently severe to constitute infringement of Article 3 of the Convention.
Regard must be had to the totality of conditions. Thus slopping out single cells,
per se, is not sufficient to constitute a breach of Article 3 (Malechkov v Bulgaria
(57830/00), European Court of Human Rights, 28 June 2007, unreported, and
Radkov v Bulgaria (18382/05), European Court of Human Rights, 10 February 2011,
unreported distinguished).
(3) In looking at the conditions as a whole, cell conditions have to be balanced by
an overall assessment of the day-to-day routine and educational and leisure facilities
in the prison under consideration. Thus aspects of the regime which are less than
satisfactory may be compensated for by other more positive aspects of the regime.
(4) Prison officers generally made efforts to respect the privacy of prisoners in respect of
use of the chemical toilets by allowing prisoners to block the spyhole when using the
chemical toilet and by exercising care not to enter cells unannounced.
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cruel, inhuman or degrading treatment
(5) There were many positive aspects of the prison conditions: it was a fairly relaxed prison; the relations between prisoners and staff were good, positive and non-threatening;
there existed a varied and potentially challenging range of activities and courses available for the prisoners; there was considerable out-of-cell time; the prison was not
overcrowded; and there were many opportunities for work, education and leisure.
Overall there was evidence of a humane regime (Napier v Scottish Ministers [2005] 1
S.C. 307 distinguished).
(6) The petitioners’ human dignity was not diminished by the conditions of their incarceration and they were not subjected to inhuman or degrading treatment. Therefore
there was no breach of Article 3 of the Convention. Although the procedure prior to
2007 was less satisfactory, it was not so to such a degree as to render the conditions
contrary to Article 3 of the Convention. Nor did giving prisoners the opportunity to
join a sanitation work party for which they were paid and trained.
(7) Consideration under Article 8 of the Convention still arises even if the court has not
found a breach of Article 3 of the Convention. The ambit of Article 8 is very wide and
the scope of ‘private life’ can include the regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness.
(8) To require the use of a chemical toilet in a single cell where a sanitation work
party exists to empty them does not constitute an interference of Article 8 of the
Convention. Recruiting someone to a sanitation work party for which they are paid
and receive certain privileges also does not constitute an interference. Nor is there
interference when a person could have availed himself of the services of a work
party but chooses not to do so.
(9) However, in circumstances where individuals had to slop out the chemical toilet themselves, and queue to do so, there was an infringement of their Article 8 right, given the
public nature of having to queue in a line with others, and empty one’s own waste in
front of others. Thus the regime in place before 2007, when the sanitation party did not
yet exist, did breach the petitioners’ right to respect for their private lives.
for the appellants: burns qc, pirie and collins; instructed by balfour and manson
llp (for taylor and kelly)
for the respondent: moynihan qc; instructed by the scottish government legal
department
[2011] ScotCS CSOH_79, 2011 SLT 549, 2011 GWD 15-354, [2011] CSOH 79
Full text of judgment available at http://www.bailii.org/scot/cases/ScotCS/2011/
2011CSOH79.html
handcuffing | failure to explain unjustified | See Antony Murithi v OCS Meru Police Station & ORS
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cruel, inhuman or degrading treatment
1. Article 3 provides: ‘No one shall be subjected to torture
or to inhuman or degrading treatment or punishment.’
Article 8 provides: ‘(1) Everyone has the right to respect
for his private and family life, his home and his
correspondence. (2) There shall be no interference by
a public authority with the exercise of this right except
|
death penalty
such as is in accordance with the law and is necessary in
a democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others.’
Death penalty
cruel, inhuman or degrading treatment | mandatory sentence unconstitutional
MIGUEL V THE STATE
judicial committee of the privy council
lord rodger, lord brown,
lord kerr, lord clarke and
lord dyson
trinidad & tobago
15 jun 2011
M was convicted of murder and sentenced to death. He appealed against this conviction.
The case of the prosecution was that M and a number of others had stolen the victim V’s
car, then shot and killed him. M was guilty of murder on the basis of either felony murder
or joint enterprise as it was accepted that M did not himself kill V.
After arrest, M alleges that he was never cautioned or informed of his legal rights, was
beaten by the police, was not fed properly and had to sleep on a concrete bunk. M denied
dictating any statement to the police and said that he only signed the notes because he was
told he would be allowed to go home.
M appealed against the conviction on four grounds: (1) whether the judge properly directed the jury on the question of withdrawal by M from the joint enterprise before the
killing; (2) the admission of evidence said to have been obtained in breach of the Judges’
Rules 1965 (‘the Judges’ Rules’); (3) the directions given by the judge in relation to written and oral statements made by M; and (4) the approach to and the application of the
proviso by the Court of Appeal. M also appealed against the sentence on the ground
that the mandatory sentence of death for an offence under s 2A of the Criminal Law Act
1979, as inserted by s 2 of the Criminal Law (Amendment) Act 1997 (‘the 1997 Act’), was
unconstitutional.
In unanimously dismissing the appeal against conviction and upholding the appeal against
sentence, finding that the mandatory death sentence for felony murder is unconstitutional
(Lord Clarke dissenting), it was held that:
(1) There was no doubt that the killing was intentional, albeit by someone other than M.
The critical questions for the jury were: (a) whether M embarked upon the commission
of an arrestable offence involving violence, namely aggravated robbery; (b) whether
the deceased was killed in the course or furtherance of that offence; (c) whether the
appellant was engaged in the course or furtherance of that offence; and (d) whether M
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death penalty
was engaged in the course or furtherance of the commission of the robbery when the
deceased was killed.
(2) In relation to the judge’s directions regarding withdrawal by M from the joint enterprise and felony murder, the judge made it clear that M must have been engaged in
the course or furtherance of the robbery when V was killed. The judge made it clear to
the jury that they must be sure the appellant did not withdraw from the robbery before
the shooting occurred. The judge also made it clear that the jury had to be sure that
the appellant was engaged in the course or furtherance of the robbery at the time of
the murder. There was no misdirection as to withdrawal.
(3) The judge had discretion whether to admit the evidence notwithstanding a breach
of the Judges’ Rules (Pearl v The Queen [2006] UKPC 5 applied). The question
was whether it was fair to admit the evidence even if the evidence was obtained
in breach of the Judges’ Rules. The Board concluded that the judge did not err in
principle in reaching his fair and just conclusion, and he was entitled to admit the
evidence.
(4) On the facts, the complaint was that the statement was not M’s written statement and
not that M was induced to make the statement as a result of police behaviour. The
issue for the jury was whether M had dictated the statement to the police (R v Wizzard
(Barry) [2007] UKPC 21 applied). The directions given by the judge were not vague.
The judge set out a number of highly relevant questions and stressed that before they
could act on an admission they must be sure that ‘the interview and statement were
made as alleged’. The jury could not have been in any doubt that, if they thought that
M’s account of the way the statement came into existence might be true, they must
acquit M.
(5) Sections 41 and 52 of the Constitution are relevant in this matter of a mandatory death
sentence.
(6) It is common ground that the mandatory death sentence is cruel and unusual punishment and therefore inconsistent with the Constitution (Matthew v Trinidad & Tobago
[2004] UKPC 33, [2005] 1 AC 433 applied).
(7) The resolution of the issue depends upon the true construction of s 63 of the Constitution
and its application to the 1997 Act. The felony murder rule at common law was a preexisting law and thus potentially within the scope of s 6 of the Constitution.
(8) However, the felony murder rule ceased to apply in 1979 (Moses v Trinidad & Tobago
[1997] AC 53 applied). The felony murder rule was therefore repealed before the 1997
Act. This did not alter an existing law for the purposes of s 6 of the Constitution. The
1997 Act was an enactment within s 6 of the Constitution.
for the appellant: james dingemans qc and daniel tivadar; instructed by simons
muirhead and burton
for the respondent: peter knox qc; instructed by charles russell llp
[2011] UKPC 14, [2011] 3 WLR 1296, [2012] 1 AC 361
Full text of judgment available at http://www.bailii.org/uk/cases/UKPC/2011/14.html
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death penalty
|
dignity
|
disability
|
1. Section 4 provides: ‘It is hereby recognised and declared
that in Trinidad and Tobago there have existed and shall
continue to exist, without discrimination by reason of race,
origin, colour, religion or sex, the following fundamental
human rights and freedoms, namely: (a) the right of
the individual to life, liberty, security of the person and
enjoyment of property and the right not to be deprived
thereof except by due process of law.’
2. Section 5 provides: ‘(1) Except as is otherwise expressly
provided in this Chapter and in section 54, no law may
abrogate, abridge or infringe or authorise the abrogation,
abridgment or infringement of any of the rights and
education
freedoms hereinbefore recognised and declared. (2)
Without prejudice to subsection (1), but subject to this
Chapter and to section 54, Parliament may not…(b) impose
or authorise the imposition of cruel and unusual treatment
or punishment.’
3. Section 6 provides: ‘(1) Nothing in sections 4 and 5 shall
invalidate: (a) an existing law; (b) an enactment that repeals
and re-enacts an existing law without alteration; (c) an
enactment that alters an existing law but does not derogate
from any fundamental right guaranteed by this Chapter in
a manner in which or to an extent to which the existing law
did not previously derogate from that right.’
Dignity
detention | mental illness | release | reasonable steps required where no longer
justified | See liberty & security – Gawanas v Government of the Republic of Namibia
handcuffing and forcible taking of blood and saliva sample unjustified |
cruel, inhuman or degrading treatment – Antony Murithi v OCS Meru Police Station & Ors
See
medical treatment | access | presumption that generic drugs were counterfeit
unjustified | See life – Pao & Ors v Attorney General & Anor
Disability
discrimination | housing benefit | uniform application did not take account of
special needs | See equality – Burnip v Birmingham City Council & Anor
Education
admissions policy | reservation of places for group not covered by positive dis­
crimination for minorities
INDIAN MEDICAL ASSOCIATION V UNION OF INDIA & ORS
supreme court
b sudershan reddy j
india
12 may 2011
Multiple writ petitioners appealed to the Supreme Court to examine whether or not the admissions policy of the Army College of Medical Sciences (‘ACMS’), which is run by the Army
Welfare Education Society (‘AWES’) and located in the National Capital Territory of Delhi
(‘NCT’), is constitutionally valid. The admissions policy restricts access only to those who are
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education
children of former and current army personnel and widows of army personnel (including
those who have died in service) (the ‘wards’). The respondents ACMS and AWES argued that
the wards face discrimination in society due to the nature of army life and, as such, it is right
for them to be protected by restricting the admissions policy of the ACMS to exclude students
from other minorities, in order to allow for the wards to excel. The appellants contended that
such a policy is unconstitutional as it restricts the right of access to education, enshrined in
the Constitution, to a new minority group who are not recognised constitutionally.
When the ACMS instigated this admissions policy they did so under the direction and with
the approval of the NCT legislature, who allowed them certain exceptions to the Delhi Act
80 of 20071 regarding the reservation of seats for those in the designated Scheduled Castes,
Scheduled Tribes and Socially and Educationally Backward Classes by permitting ACMS to
allocate all its seats to the wards. The appellants questioned the validity of these exceptions
and argued that the admission policy of 100 per cent reservations to the wards amounted to an
unconstitutional super-reservation, and therefore contradicted Article 14 of the Constitution.
The ACMS is also an affiliated satellite of Gord Gobind Singh Indraprastha University
(‘GGSIU’). The board of management of GGSIU enacted Ordinance 30 through its statutory powers under the GGSIU Act 1998.2 The questions for the Supreme Court were
whether Ordinance 30 of GGSIU was applicable to ACMS (and therefore whether there
was an upper limit on reservations of 5 per cent for defence personnel), whether Ordinance
30 was effectively consolidated by the Delhi Act 80 of 2007, and whether the two enactments should be read alongside each other.
The reservation of seats for certain persons historically disadvantaged in Indian society is
mandated in law for those colleges who are non-minority only. Those that have exclusive
minorities to educate are entitled to choose whom they want to admit. The respondents
argued that the running of the ACMS is entirely funded out of donations and regimental
funds, not from central government, and the ACMS is therefore entitled to be considered a
minorities college, outside the scope of the Delhi Act 80 of 2007. In addition, the respondents argued that, in dictating admissions policies to the college, the Delhi Act 80 of 2007
was encroaching on the freedoms of educators to choose who to teach, pursuant to Article
30 of the Constitution, and was therefore invalid.
In allowing this appeal, it was held that:
(1) Ordinance 30 of the GGSIU does not apply in this case as the Delhi Act 80 of 2007,
covering the same area of law, was passed later and by the same level of legislature.
The Delhi Act 80 of 2007 is therefore the applicable law to be considered within the
NCT, but Ordinance 30 remains the applicable law for localities where the Delhi Act
80 of 2007 does not apply.
(2) The Supreme Court agreed with the findings of the High Court and Division Bench
that ACMS is a private, non-minority unaided professional institution, that AWES is
a charitable trust and that only regimental funds (which have been recognised to be
private funds) are used in the day-to-day running of ACMS.
(3) The respondents’ interpretation of s 12(1)(b) of the Delhi Act 80 of 2007 was incorrect.
The Delhi Act 80 of 2007 stipulates that up to 15 per cent of seats may be reserved for
non-Delhi students. The words ‘or such other allocation as the Government may by
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education
notification in the Official Gazette direct’ refer only to varying the percentage of seats
reserved for non-Delhi students, up to the maximum of 15 per cent. It cannot be read as
giving the Government the power to vary the entire allocation of seats. The exceptions to
the Delhi Act 80 of 2007 granted by the NCT legislature to ACMS allowing it to allocate
100 per cent of its seats to the wards are ultra vires. Reliance on these exceptions is therefore illegal and the admissions are void pursuant to s 14 of the Delhi Act 80 of 2007.
(4) There is a distinction in law between the rights and freedoms of minority institutions and
non-minority institutions, and these extend beyond merely selecting students to teach.
Sources of minority students are given by the Scheduled Castes, Scheduled Tribes and
Socially and Educationally Backward Classes identified in the Constitution. As a nonminority unaided professional college, the ‘source’ of ACMS students can only be the
general pool and selection has to be based on inter se ranking of students who have qualified, i.e. passed the entrance exam, and applied to the institution. To select another source
as a minority is constitutionally invalid under Article 303 of the Constitution, as this would
lead to an inevitable carving up of the constitutional protections under that Article.
(5) Access to education is a fundamental right, identified in several Articles of the
Constitution, most notably Articles 19 and 30. The Delhi Act 80 of 2007, given
its attempts to ensure access to education via reservations of seats for those in the
Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes,
is constitutionally valid under clause (5) of Article 15 of the Constitution.4 However, the
Supreme Court declared the admission policy of ACMS to be illegal and directed the
respondents to admit the writ petitioners to ACMS. The Supreme Court did make it
clear that the order did not apply retrospectively and that all admissions already made
by ACMS shall not be affected in any manner whatsoever.
for the appellant and writ petitoners: dr aman hingorani
for the respondents: mr k venugopal and mr jaideep gupta
[2011] INSC 501
Full text of judgment available at http://www.liiofindia.org/in/cases/cen/INSC/2011/501.
html
children | duty to prohibit employment in circuses |
See
children –
Bachpan Bachao
Andolan v Union of India & Ors
discrimination | disability | failure to provide necessary remedial care | See equality
– Moore v British Columbia (Education)
1. The Delhi Act 80 of 2007 states:
• in section 2: ‘the provisions of this Act shall apply to (a)
unaided institutions affiliated to a University imparting
education in degree, diploma and certificate courses’;
142
• in section 12: ‘in the allocation and reservation of seats:
• in every institution, except the minority institution,
subject to the provisions of this Act, ten percent of the
total seats in an unaided institution shall be allocated
as management seats;
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• of the remaining seats, eighty five percent shall be
allocated for Delhi Students
• supernumerary seats for non-resident Indians and any
other category shall be as may be prescribed; and
• of the reserved seats, a certain number shall be for
those in scheduled castes, tribes and other backward
classes’;
• in section 13: ‘all institutions shall, subject to the
provisions of this Act, make admission though a common
entrance test to be conducted by the designated agency, in
the manner as proscribed’; and
• in section 14: ‘any admissions made in contravention of
this Act shall be void.’
2. Ordinance 30 of GGSIU provides that ‘for making special
provisions for the advancement of weaker sections of society,
and in particular to persons belonging to the Scheduled
|
equality
Castes and Scheduled Tribes, a certain percentage of seats
shall be reserved by every affiliated college and that in wards
of defence personnel the upper limit of reserved seats shall
be 5%.’
3. Article 30 of the Constitution provides that ‘all minorities
shall have the right to establish and administer educational
establishments.’
4. Article 15(5) provides that ‘in relation to prohibitions of the
grounds of race, religion, sex or caste, nothing in this article
shall prevent the State from making any special provision,
by law, for the advancement of any socially and educationally
backward classes, or for citizens of the scheduled castes or
tribes, in so far as making provisions for their admission
to educational institutions, including private institutions,
whether aided or unaided by the State.’
Equality
discrimination | disability | failure failure to provide necessary remedial care
MOORE V BRITISH COLUMBIA (EDUCATION)
supreme court
mclachlin cj, lebel, deschamps, fish, abella,
rothstein, cromwell, moldaver and karakatsanis jj
canada
9 nov 2012
M, a child with a severe learning disability, claimed he was discriminated against because
the intense remedial instruction he needed in his early years was not available in the public
school system.
At the relevant time, public school funding in British Columbia was approved annually
by the provincial administration (‘the Province’), but administered by the districts. When
M entered kindergarten in 1991, students with special needs in the relevant district (‘the
District’) were supported in several ways, including through potential placement in the
District Diagnostic Centre (‘the Diagnostic Centre’), a programme providing intensive
services and individualised assistance to students with severe learning difficulties.
From 1991/2 to 1993/4, the District faced consistent budgetary shortfalls, and large-scale
budget cuts were made during this period. In the 1994/5 budgetary process, one of the
cuts which was implemented was the closure of the Diagnostic Centre in 1994.
It became apparent when M was in kindergarten that he needed extra support to read. M
received help and assistance while in kindergarten, and during Grades 1 and 2. Following
a full psycho-educational assessment on 1 April 1994, a psychologist employed by the
District concluded that M needed more intensive remediation than he had received thus
far, and suggested that he attend the Diagnostic Centre.
Soon after this assessment, M’s parents were informed that, due to the imminent closure of
the Diagnostic Centre, M could not obtain the remediation he needed in the school system,
and that the necessary instruction was only available at a certain specialist private school.
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equality
M attended the recommended specialist private school from Grades 4 to 7. He began
Grade 8 at a different private school (also specialising in children with learning disabilities), and eventually completed high school there. The remedial instruction received in
these specialist schools from Grade 4 onward was successful, and his reading ability
improved significantly.
M’s father filed a complaint before the Human Rights Tribunal (‘the Tribunal’) against the
District and the Province, alleging that M had been discriminated against because of his
disability, and denied ‘a service…customarily available to the public’, contrary to s 81 of the
British Columbia Human Rights Code 1996 (‘the Code’).
The Tribunal concluded that there had been both individual discrimination against M
(by the District, due to its failure to assess M’s learning disability early and to provide
appropriately intensive instruction following closure of the Diagnostic Centre) and systemic discrimination against students with severe learning disabilities in general (by the
District, due to underfunding of certain severe learning disabilities programmes and the
closure of the Diagnostic Centre, and by the Province, due to problems in the provincial
administration of special education). It awarded a monetary remedy to M’s family, and
also ordered certain systemic remedies as against the District and the Province.
An application for judicial review of the decision of the Tribunal was allowed by Dillon J in
the Supreme Court of British Columbia. She found that M’s situation should have been compared to that of other special needs students, as opposed to the student population in general.
She held that this failure to identify and compare M with an appropriate comparator group
tainted the discrimination analysis, and as a result she set aside the Tribunal’s decision.
This decision was appealed to the Court of Appeal, where a majority dismissed the appeal,
agreeing that M had to be compared to other special needs students. This decision was
further appealed to the Supreme Court.
Substantially allowing the appeal, and restoring the finding of discrimination against the
District, it was held that:
(1) Section 8 of the Code requires that if a service is ordinarily provided to the public, it
must be made available in a way which does not arbitrarily or unjustifiably exclude
individuals by virtue of their membership of a protected group.
(2) To demonstrate prima facie discrimination, the complainant must show that they have
a characteristic protected from discrimination under the Code, that they experienced
an adverse impact with respect to the service, and that the protected characteristic was
a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice. If it cannot be justified,
discrimination will be found to occur.
(3) For students with learning disabilities, ‘special education’ is not the relevant ‘service’
for the purposes of s 8. Rather, it is the means by which those students gain meaningful access to the general educational services available to all students in British
Columbia. To define ‘special education’ as the relevant service risks a ‘separate but
equal approach’, under which the District could cut all special needs programmes,
and yet be immune from a claim of discrimination (Brown v Board of Education of
Topeka, 347 U.S. 483 (1954) considered). If M was compared only to other special
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equality
needs students, consideration cannot be given to whether he had genuine access to
the education all students in British Columbia are entitled to, which risks perpetuating the disadvantage and exclusion from mainstream society that the Code is intended
to remedy (Brooks v Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219;
Gwen Brodsky, Shelagh Day and Yvonne Peters, Accommodation in the 21st Century
(2012) considered).
(4) M’s dyslexia was a disability, and any adverse impact suffered was related to his disability. The question is whether M has been denied access to the general education
available to the public in British Columbia based on his disability, access which must
be ‘meaningful’ (Eldridge v British Columbia (Attorney General), 1997 CanLII 327
(SCC); University of British Columbia v Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353
considered).
(5) Where the evidence demonstrates that the Government failed to deliver the mandate
and objectives of public education, such that a given student was denied meaningful
access to the service based on a protected ground, this will justify a finding of prima
facie discrimination.
(6) The combination of the clear recognition by the District, its employees and the
experts that M required intensive remediation in order to have meaningful access
to education, the closure of the Diagnostic Centre and the fact that M’s family were
informed that the services could not otherwise be provided by the District amply
support the conclusion that the failure by the District to meet M’s educational needs
constituted prima facie discrimination.
(7) To determine whether conduct which amounts to prima facie discrimination is justified, it must be shown that alternative approaches were investigated (British Columbia
(Public Service Employee Relations Commission) v BCGSEU, 1999 CanLII 652 (SCC),
[1993] 3 S.C.R. 3 considered) and that the prima facie discriminatory conduct was
‘reasonably necessary’ in order to accomplish a broader goal (Ontario Human Rights
Commission v Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202; Central
Okanagan School District No. 23 v Renaud, 1992 CanLII 81 (SCC) considered).
(8) There is no doubt that the District was facing serious financial constraints during the
relevant period, nor is there any doubt that this is a relevant consideration. However,
cuts were disproportionately made to special needs programmes by the District.
Moreover, the District undertook no assessment of what alternatives were or could be
reasonably available to accommodate special needs students if the Diagnostic Centre
were closed. The failure to consider financial alternatives undermined the District’s
position – in order to decide that it had no other choice, it had to at least consider what
those other choices were. Accordingly, the Tribunal’s conclusion that the District’s
conduct was not justified was not disturbed.
(9) In light of the Tribunal’s finding that it was the District which failed to properly consider the consequences of the closure of the Diagnostic Centre, the conclusion that the
Province was liable for the District’s discriminatory conduct could not be sustained.
(10)The individual monetary remedy granted to M’s family was sustainable given the
scope of the complaint.
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equality
(11) Remedial decisions of the Tribunal are subject to a standard of patent unreasonableness, according to s 59 of the Administrative Tribunals Act, S.B.C 2004, and c.45.
The systemic remedies granted by the Tribunal were so remote from the scope of
the complaint that they reached the threshold in s 59. The evidence concerning the
provincial funding regime was too remote to demonstrate discrimination against M.
The systemic remedies ordered against the District essentially directed the District
to comply with the Code, and were to that extent redundant. The order that the
Tribunal remained seized of the matter to oversee implementation of its orders was
not necessary to ensure M’s claim was satisfied, given that M had finished high school
education and would not re-enter the public school system.
(12) It is neither necessary nor helpful to divide discrimination into two discrete categories,
individual and systemic – the only difference is quantitative (Griggs v Duke Power Co.,
401 U.S. 424 (1971) considered). The question in every case is the same: does the practice
result in the claimant suffering arbitrary or unjustified barriers on the basis of his or her
membership of a protected group? Where it does, discrimination will be established.
(13) In a sense, a remedy for an individual claimant can have a systemic impact – a finding
that M suffered discrimination and was entitled to a consequential personal remedy
has clear broad remedial repercussions for how other students with severe learning
disabilities are educated. However, the remedy must flow from the claim.
for the appellant j: frances m kelly and devyn cousineau; instructed by community
legal assistance society, vancouver
for the respondent her majesty the queen in right of the province of british
columbia, as represented by the ministry of education: leah greathead and e w
(heidi) hughes; instructed by the attorney general of british columbia, victoria
for the respondent the board of education of school district no. 44 (north vancouver), formerly known as the board of school trustees of school district no. 44
(north vancouver): laura n bakan, qc, david j bell and kristal m low; instructed by
guild yule, vancouver
for the intervener the attorney general of ontario: robert e charney and sarah
kraicer; instructed by the attorney general of ontario, toronto
for the intervener justice for children and youth: andrea luey; instructed by
canadian foundation for children, youth and the law, toronto
for the intervener the british columbia teachers’ federation: diane macdonald
and robyn trask; instructed by british columbia teachers’ federation, vancouver
for the intervener the council of canadians with disabilities: gwen brodsky, yvonne peters and melina buckley; instructed by camp fiorante matthews,
vancouver
for the interveners the ontario human rights commission, the saskatchewan
human rights commission and the alberta human rights commission: anthony d
griffin; instructed by ontario human rights commission, toronto
for the intervener the international dyslexia association, ontario branch:
rahool p agarwal, christopher w cummins and rowan e weaver; instructed by norton rose canada, toronto
146
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equality
for the intervener the canadian human rights commission: brian smith and
philippe dufresne; instructed by canadian human rights commission, ottawa
for the intervener the learning disabilities association of canada: yude m
­henteleff. qc and darla l rettie; instructed by pitblado, winnipeg
for the intervener the canadian constitution foundation: ranjan k agarwal and
daniel holden; instructed by bennett jones, ottawa
for the intervener the manitoba human rights commission: isha khan; instructed
by manitoba human rights commission, winnipeg
for the intervener the west coast women’s legal education and action fund: alison
dewar; instructed by west coat women’s legal education and action fund, vancouver
for the intervener the canadian association for community living: roberto
lattanzio and laurie letheren; instructed by arch disability law centre, toronto
for the intervener commission des droits de la personne et des droits de la
­jeunesse: athanassia bitzakidis; instructed by commission des droits de la p­ ersonne
et des droits de la jeunesse, montréal
for the intervener the british columbia human rights tribunal: denise e paluck;
instructed by british columbia human rights tribunal, vancouver
for the intervener the first nations child and family caring society of
canada: nicholas mchaffie and sarah clarke; instructed by stikeman elliot, ottawa
2012 SCC 61 (canlii), [2012] 3 scr 360
Full text of judgment available at http://www.canlii.org/en/ca/scc/doc/2012/2012scc61/
2012scc61.html
discrimination | disability | housing benefit | uniform application did not take
account of special needs
BURNIP V BIRMINGHAM CITY COUNCIL & ANOR
court of appeal (civil division) (england and wales)
kay lj, hooper lj and henderson j
united kingdom
15 may 2012
Three separate cases which came to the Court of Appeal by way of appeals from the Upper
Tribunal. Due to their severe disabilities, B and T were assessed as needing the presence
of carers throughout the night in the rented flats in which they lived, for which, as part of
their disabilities, they required two-bedroom flats. However, the housing benefit (‘HB’)
that they were entitled to receive was calculated by their local authority by reference to the
one-bedroom rate which would apply to able-bodied tenants.
At the relevant time in 2008, B had three sources of income apart from HB: incapacity benefit, disability living allowance and his student loan. B’s total weekly income was
£288.09. As B’s income exceeded the applicable amount, the weekly HB was reduced by
65 per cent. The sum he received in HB was £95.89, a shortfall of £59.88 when compared
with the weekly rent of £155.77 payable to his landlord. If B had been entitled under the
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2006 regulations to a property with two bedrooms, his maximum eligible rent would have
been £126.92 per week.
Having previously lived at home with her parents, T moved into a two-bedroom flat in October
2008. The rent for the property was £109.62 per week for which T received £91.15 in HB calculated by reference to one bedroom. The rate for two bedrooms was £144.92. T received income
support which reduced her weekly shortfall from £28.77 to £18.47. From March 2009, T
was awarded discretionary housing payments which met the full amount of the shortfall.
However, T received no discretionary payments between October 2008 and March 2009.
G, his wife and three children lived in a four-bedroom rented house. Two of G’s daughters,
then aged 8 and 10, were disabled. For this reason it was inappropriate for them to share
a bedroom in the way in which able-bodied sisters of those ages would be expected to do.
HB was provided to the family by reference to the three-bedroom rate which would apply
if the children were not disabled. G and his family were in receipt of substantial disabilityrelated benefits. The three-bedroom rate of HB paid to G was £155.77 per week, leaving
a shortfall of £73.84. Between July and November 2008, no discretionary housing payments were made. For the remaining two months of the tenancy, discretionary housing
payments were awarded at £63.46 per week. When G and his family moved to cheaper
accommodation, the shortfall was £40.38. Discretionary housing payments were made
until April 2009; then G had to make a fresh application, which was refused in May 2010.
G received no payment from April 2009 to December 2010.
In all three cases the issue to be decided by the court concerned whether the decision by
each of the local councils to quantify the HB by reference to a rate that applied to able-bodied tenants amounted to unlawful discrimination pursuant to Article 142 of the European
Convention on Human Rights (‘the ECHR’).
In allowing the appeal, it was held that:
Per Kay LJ:
(1) Disability is included within the concluding words ‘or other status’ of Article 14 of the
ECHR (AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 followed). The
real issues concern (a) whether there was discrimination on the ground of disability
and, if so, (b) whether any such discrimination or difference in treatment was justified.
(2) On the issue of discrimination, where, as in the present case, a group recognised as
being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination
is established. Therefore, the appellants fall within Article 14, subject to justification.
The provisions of the United Nations Convention on the Rights of Persons with
Disabilities resonate in the present case, even though those rights do not refer specifically to the provision of a state subsidy such as HB.
Per Henderson J:
(1) The appellants had established a prima facie case of discrimination pursuant to Article
14. The Secretary of State must therefore establish that there was at the material time
objective and reasonable justification for the discriminatory effect of the relevant HB
criteria as they applied to the particular circumstances of the appellants.
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(2) A difference of treatment lacks objective and reasonable justification ‘if it does not
pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (Stec v United
Kingdom (2006) 43 EHRR 47 applied).
(3) What has to be justified is not the scheme of HB as a whole, or the general policy of
calculating HB in the private sector by reference to the number of bedrooms deemed
to be needed by ‘occupiers’, but rather the difference in treatment resulting from the
application of those criteria which has been held to infringe Article 14 (A v Secretary of
State for the Home Department [2005] 2 AC 68).
(4) The Upper Tribunal’s reliance on AM (Somalia) v Entry Clearance Officer – a case
which dealt with disability in the context of immigration control – was incorrect as
there were important differences between the circumstances of the present appeals
and the position in that case.
(5) First, the present case concerns a benefit (HB) the purpose of which was to help people
to meet their basic human need for accommodation of an acceptable standard. Secondly,
there is no question of a general exception from the normal bedroom test for disabled
people of all kinds. The exception is sought only for a very limited category of claimants,
namely those whose disability is so severe that an extra bedroom is needed for a carer
to sleep in (or, in cases like that of G, where separate bedrooms are needed for children
who, in the absence of disability, could reasonably be expected to share a single room).
(6) Thirdly, such cases are by their very nature likely to be relatively few in number, easy to
recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.
The cost and human resource implications of accommodating them should therefore be
modest, quite apart from the point that in some cases the effect of refusing the claim
could well be to force the claimant into full-time residential care at much greater expense
to the public purse. Fourth, the extra assistance which can be provided by discretionary
housing payments, valuable though it can be, falls far short of being an adequate solution
to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like
those of B and T, and to do so at a time of general economic hardship, highlights both
the justice of such claims and the proportionate cost and nature of the remedy.
(7) The maintenance of the single-bedroom rule for the disabled in these appeals was not
a fair or proportionate response to the discrimination which they have established in
the present cases and the defence of justification therefore fails.
for the first appellant: richard drabble qc and tim buley; instructed by irwin
mitchell solicitors
for the second appellant: richard drabble qc and desmond rutledge; ­instructed
by birmingham law centre
for the third appellant: richard drabble qc and tim buley; instructed by the
child poverty action group
for the respondent: tim eicke qc and edward brown; instructed by department
of work and pensions
for the intervener: helen mountfield qc
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[2012] EWCA Civ 629
Full text of judgment available at http://www.bailii.org/ew/cases/EWCA/Civ/2012/629.html
discrimination | residence | length required for social welfare not unreason­
able
KONG YUNMING V THE DIRECTOR OF SOCIAL WELFARE; YAO MAN FAI
GEORGE V. THE DIRECTOR OF SOCIAL WELFARE
high court
stock vp, lam and barma jj
hong kong
17 feb 2012
K, the widow of a Hong Kong national, challenged the constitutionality of the seven-year
rule for eligibility for Comprehensive Social Security Assistance (‘CSSA’). Y, a Hong Kong
resident who had been working for a Hong Kong company on the mainland, challenged the
constitutionality of the one-year rule for CSSA. These rules required applicants for CSSA to
have been resident in Hong Kong for at least seven years prior to applying and, furthermore,
to have resided in Hong Kong for one year continuously immediately before the application,
and to have been absent from Hong Kong no more than 56 days during this one year.
K argued that the residency requirements were unconstitutional because they breached
Article 363 of the Basic Law (right to social welfare), Article 254 of the Basic Law (right to
equality), Article 22 of the Bill of Rights (right to equality before the law and freedom from
discrimination) and Article 1456 of the Basic Law (which imposes an obligation upon the
Government to develop and improve the social welfare system).
Y argued that the one-year rule infringed not only rights under Articles 36 and 145 of the
Basic Law, but also Articles 317 (right to freedom of travel), 338 (right to freedom of choice
of occupation) and 25 (right to equality before the law) of the Basic Law.
In separate decisions, the same judge dismissed K’s challenge but allowed Y’s application
and declared the one-year rule unconstitutional. K and the Director of Social Welfare then
appealed to the Court of Appeal.
In dismissing both the appeal of K and the appeal from the Director of Social Welfare, it
was held that:
Per Stock VP and Barma J (Lam J concurring):
(1) The question was whether the difference in treatment between residents constitutes
discrimination and, if so, whether this discrimination and/or difference in treatment
could be justified in light of Hong Kong’s social and economic needs, and the purpose
for which the one-year and seven-year rules were implemented.
(2) Hong Kong residents are entitled to social welfare under Article 36 of the Basic Law.
The Government was entitled to amend social welfare and the CSSA under Article
145 of the Basic Law, in light of social and economic need. It therefore could not have
been the law-makers’ intention when drafting Article 36 to confer an absolute right
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to all forms of social welfare upon the entire population. It could be assumed that the
framers of the Basic Law were aware of the competing demands upon Government
expenditure and the breadth of the term ‘social welfare’, as well as the unpredictability
of socio-economic developments and Hong Kong’s susceptibility to immigration pressures. Article 145 of the Basic Law did not state that a change in eligibility criteria had
to be less onerous than the previous criteria. The improvement of the social welfare
system had to be balanced against other needs, and the change in eligibility criteria
was necessary in order to maintain the viability of the system for future generations.
(3) Hong Kong residents find protection against discrimination in both the Basic Law through
Article 259 and Article 26 of the International Covenant on Civil and Political Rights (‘the
ICCPR’). The test from Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at 349
was applied, which required that the difference in treatment pursued a legitimate aim,
which in this case was to ration finite resources and combat public expenditure. The residential criteria were rationally connected to that aim. The question remaining was whether
the difference in treatment was no more than necessary to achieve the legitimate aim.
(4) Article 36 of the Basic Law was not an absolute right, and its conferment anticipated
qualifying criteria. Given the terms of Article 145 and the historical context, it was
accepted that a minimum period of residence is a permissible qualification in this
case. The court had to recognise that governmental decisions in such an arena call for
the making of difficult judgements subject to multi-layered, often conflicting, policy
considerations, usually after taking into account a variety of views, and in the context
of finite resources intended to be divided to meet competing needs.
(5) However it was the length of the residency criteria which was the subject of some
discretion. Nevertheless, a line had to be drawn somewhere, and unless that line was
unreasonably drawn, the courts had no right to interfere. Eligibility based on the
seven-year residence requirement reflected the contribution made by the resident to
Hong Kong and the socio-economic needs of Hong Kong, and therefore the sevenyear residency requirement did not go further than necessary in achieving its aim.
(6) In respect of Y’s case, and with regards to the one-year rule, the stated aim and purported justification were the same as for the seven-year rule (to ensure the allocation
of public resources on a rational basis and the long-term sustainability of heavily subsidised public services). The stated aim and reason was therefore legitimate.
(7) Drawing a line at 56 days of absences in a one-year period was unreasonable, however, as it caught people who had clearly not been absent from Hong Kong ‘for a
long time’. Residents could be absent from Hong Kong for more than 56 days for a
variety of legitimate reasons, such as receiving medical treatment, holiday, training
on the mainland or working for a Hong Kong employer on the mainland, without this
affecting their contribution to Hong Kong. The one-year rule was a disproportionate
infringement of the Article 31 Basic Law rights to travel as it was not ‘no more than
necessary’ to accomplish its aim. As such, the one-year rule was unconstitutional.
Per Lam J:
(1) While Article 25 provided that Hong Kong residents should be equal before the law, it
did not provide equality of access to social welfare, and a residency requirement was
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not a criterion which fell within discrimination. Money saved from the adoption of the
seven-year rule would be used for other public purposes, serving the interest of the
community as a whole.
(2) CSSA was only one form of social welfare, and the Basic Law did not prescribe that
social welfare had to be provided by CSSA. Article 145 of the Basic Law allowed the
Government for formulate its own social welfare policy in light of social needs and
economic conditions, and so the non-availability of CSSA did not equate to the total
withdrawal of social welfare for those who did not meet the eligibility requirements.
(3) There was no right to equal treatment in all cases irrespective of the differences
between the situation of a claimant and another person. It made no difference that
the line was drawn at seven years rather than at permanent residence status.
(4) In respect of Y’s case, the measure adopted could not be justified because the rationale for
drawing the line did not match where the line was actually drawn. It was drawn unreasonably because it excluded those who have not lived outside of Hong Kong for a long time.
for the applicant k: mr johannes chan sc and mr hectar pun; instructed by
messrs tang, wong and chow
for the applicant y: mr dennis chang sc and mr hectar pun; instructed by messrs
tang, wong and chow
for the respondent: mr lord pannick qc and mr abraham chan; instructed by the
department of justice
for the society of community organization: mr tsoi yiu cheong
[2012] HKCA 78, [2012] HKCA 79
Full text of judgment available at http://www.hklii.hk/eng/hk/cases/hkca/2012/78.html
and http://www.hklii.hk/eng/hk/cases/hkca/2012/79.html
discrimination | sex | conservatory order | justified by prima facie case
CENTRE FOR RIGHTS EDUCATION AND AWARENESS (CREAW) & ORS V
ATTORNEY GENERAL
high court (nairobi)
musinga j
kenya
3 feb 2011
On 28 January 2011 the Office of the President announced the nomination of a number
of men to the offices of Chief Justice, Attorney General (‘the AG’), Director of Public
Prosecutions and Controller of Budget. It was alleged that the Office of the Prime Minister
had claimed that it was not consulted prior to the announcement of the nominations and
the Judicial Service Commission did not make recommendations for nomination to the
office of Chief Justice. It was also suggested that the posts were not advertised in a way that
would give an equal opportunity to every Kenyan to apply for the posts.
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C and others were non-governmental organisations and civil society organisations advocating gender considerations. C took up this case in the public interest of preserving equality
and on behalf of the women of Kenya. C filed for a number of declarations regarding
the application of the Constitution, as well as seeking a conservatory order temporarily
restraining the appointment of the nominated men. C’s application was supported by an
affidavit sworn by the Executive Chairperson of CREAW and the application was brought
under Article 23(3)(c) of the Constitution, s 19 of the Sixth Schedule of the Constitution
and Rules 20 and 21 of the Constitution. The AG, as respondent, conceded that there was
discrimination against women, but disputed that there was no consultation between the
President and Prime Minister as there existed insufficient evidence to prove this, although
it was admitted that the Judicial Services Commission was entitled to make a recommendation. K, for the Party of National Unity, concurred that there was not sufficient evidence
to prove a lack of consultation. He also argued that the fact that all of the nominees were
male did not necessarily imply that there was discrimination without the statistics of the
personnel in those offices being taken into account. Counsel argued that there was not
sufficient evidence to prove a lack of consideration. The AG further argued that the conservatory order, if granted, would infringe the doctrine of separation of powers.
In upholding the petition for a conservatory order, it was held that:
(1) With regard to the nomination of the Chief Justice, the AG conceded that the President
ought to receive recommendations from the Judicial Service Commission prior to the
nomination. Under Article 156(1) of the Constitution, the AG is the principal legal adviser
to the government and the President is required to take his advice seriously. Therefore,
based on the concession of the AG, it was held that there was a prima facie case that the
nomination did not comply with the requirements laid out in Article 166(1)(a) of the
Constitution as read together with s 24(2) of the Sixth Schedule of the Constitution.
(2) With regard to the question of whether the nomination to the office of the Chief Justice
was done after consultation between the President and the Prime Minister, in accordance with the National Accord and Reconciliation Act, it was found that there was
some consultation between the President and the Prime Minister, although there was
no consensus between them. Although consensus is not required under s 24(2) of
Schedule Six of the Constitution, the values stated under Article 10 of the Constitution
and the spirit of the National Accord and Reconciliation Act should be considered
when making nominations. Therefore, in light of this approach and as no consensus
existed, C had a prima facie case that consultation had not occurred.
(3) With regard to the potential violation of Article 27(3) of the Constitution regarding the
equal treatment of both genders, there is no reason put forward by the respondent as
to why none of the four people nominated for the positions were women. Therefore,
as all of the nominees were men, due consideration has not been given to the spirit of
equality embodied in the legislation. As a result of these holdings, it seems satisfactory that C has shown this to be a prima facie case with a likelihood of success.
(4) As the National Assembly (who would be responsible for furthering the nominations of the men nominated by the President) represents the people of Kenya further
to the application of Article 95(2) of the Constitution, the court cannot inhibit the
National Assembly in performing its constitutional duty. However, by approving this
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equality
unconstitutional nomination, the National Assembly will be acting unconstitutionally
unless it is pointed out by the Speaker of the National Assembly that such an action
would be unconstitutional, disallowing the continuance of these appointments. The
High Court is therefore obliged to make a declaration of this fact to the National
Assembly in order to bring this to their attention.
(5) As the court must uphold the Constitution and the rule of law, it must declare
that it would be unconstitutional for an officer or organ of the State to carry on with
the approval of these nominations and the appointment to the offices of the Chief
Justice, Attorney General, Director of Public Prosecutions and Controller of Budget
based on the nominations made on 28 January 2011. This is to be the case until the
hearing of the petition or any further orders of the High Court. C will have the costs of
the application.
for the petitioners: mr ongoya, mrs thongori, mrs wahome, mrs sijeny, mr chigiti,
miss wambua and mr mwaura
for the respondent: miss mbiyu, mr ombwayo and mr onyiso
for the party of national unity: mr kihara and dr njiru
[2011] eKLR; Petition 16 of 2011
Full text of judgment available at http://kenyalaw.org/Downloads_FreeCases/162011.pdf
discrimination | sex | refusal to split child tax credit between parents justifi­able
HUMPHREYS V REVENUE AND CUSTOMS
supreme court
lord walker, lady hale, lord clarke,
lord wilson and lord reed
united kingdom
16 may 2012
H appealed against a previous decision by the Court of Appeal (Civil Division) (Humphreys v
Revenue and Customs Commissioners [2010] EWCA Civ 56, [2010] 1 F.C.R. 630) that the system
of a single payment of Child Tax Credit (‘CTC’) under the Child Tax Credit Regulations 2002
(SI 2002/2007) (‘the Regulations’) was justified. H was a father of two and received income
support, contributory Incapacity Benefit and non-contributory Disability Living Allowance.
Between January 2004 and December 2005, H looked after his children at least three days
a week. When H applied for CTC for this period, HMRC refused H’s application on the
grounds that the mother had the ‘main responsibility’ for the children under Rule 210 of the
Regulations. Further, under the Regulations, CTC was payable to one household only and
could not be split where childcare was shared between separated parents, i.e. the ‘no-splitting
rule’. H successfully challenged HMRC’s refusal on the basis that the rule was discriminatory against men. However, the Upper Tribunal and Court of Appeal found the discrimination
to be justified as a proportionate means of pursuing a legitimate aim of social policy.
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The issue to be determined before the Supreme Court was whether the discrimination
was justified or whether the refusal of CTC to H was incompatible with his rights under
Article 14 of the European Convention on Human Rights (‘the ECHR’) on non-discrimination. H submitted, relying on the decision in Hockenjos v Secretary of State for Social
Security [2004] EWCA Civ 1749, [2005] Eu. L.R. 385, that given his dependence on subsistence level benefits the no-splitting rule meant he was unable to meet his children’s needs
when they were under his care. The commissioners argued that the target of CTC was to
provide support to the child and reduce child poverty and, as such, the benefit attached to
the child and not the parent. Single payment to the main carer allowed for everyday and
‘capital’ expenditures borne primarily by the main carer and research had shown single
payments to be more efficient and effective than split payments.
In unanimously dismissing the appeal, it was held that:
(1) The appropriate test to be used for justifying discrimination in allocating state benefits
is found in Stec v United Kingdom (2006) 43 EHRR 1017. In Stec, the court repeated
the general principle that a ‘difference in treatment is discriminatory…if it does not
pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised’. This principle
should be qualified by recognising that for measures of economic or social strategy,
national authorities are better placed to appreciate what is in the public interest. In the
context of state benefits, a court should not intervene unless the discriminatory policy
was ‘manifestly without reasonable foundation’.
(2) The no-splitting rule is a reasonable rule for the State to adopt. The State is entitled to
conclude that directing state benefit to a single household was more efficient and effective in allowing that household to be better equipped to meet the child’s needs. It is
reasonable for the government to use the introduction of CTC as a policy tool to smooth
the transition from benefits to work and to regard single payment of child support as an
integral part of the policy. It is also reasonable for the Government to regard the method
of delivery of child support as a separate issue to how children spend their time.
(3) Indirect sex discrimination under the no-splitting rule is justified.
for the appellant: richard drabble qc and sasha blackmore; instructed by ford
simey llp
for the respondent: jason coppel and katherine eddy; instructed by hmrc
solicitors office
[2012] UKSC 18, [2012] 4 All ER 27, [2012] STI 1664, [2012] PTSR 1024, [2012] Eq LR 714, [2012] 1 WLR 1545,
[2012] 3 FCR 403, [2012] HRLR 21
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2012/18.html
discrimination | status | right of audience | differential treatment of advoca­tes
and attorneys justified
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equality
RALEKOALA V MINISTER OF HUMAN RIGHTS, JUSTICE AND CONSTITUTION
AFFAIRS & ORS
constitutional court
musi aj, monaphati and molete jj
lesotho
30 mar 2012
R, a duly admitted and practicing advocate, challenged some of the statutory provisions
regulating his practice on the basis that he has encountered injustice as a result. R alleged
that his right to practise law in the courts of Lesotho was violated by the provisions of the
Legal Practitioners Act No. 11 of 1983 (‘the LPA 1983’) and the rules governing procedure
in the Court of Appeal, High Court and Subordinate Courts (‘the Rules of Court’), which
require that an advocate be instructed by an attorney in order to appear in the courts. He
claimed that the LPA 1983 and the Rules of Court are discriminatory and also violate his
entitlement to equality before the law and to equal protection of the law as provided for
in ss 18 (freedom from discrimination) and 19 (right to equality before the law and the
protection of the law) of the Constitution, because there is no such duty on an attorney to
brief an advocate in order to appear before the courts. He also argued that Rules 17(1)(c)
and 20(1) of the High Court Rules 1980, Rule 49(1)(a) of the Magistrate’s Court Rules 1996
and Rules 19(1), 19(2) and 20(3) of the Court of Appeal Rules 2006 to be incompatible with
the Constitution in their references to ‘duly instructed by an attorney’. The attorney has
right of audience in all the courts but an advocate may only appear in courts when duly
instructed by an attorney. R argued that an attorney will only brief an advocate in cases in
which the attorney is unable to fully deal with the case because of time constraints or other
reasons. Secondly, advocates suffer the restriction of being unable to demand or receive
money or instructions directly from a client.
R also submitted that there have been allegations that, as a result of the legislation imposing a split profession, some advocates are resorting to unlawful conduct by, inter alia,
forging an attorney’s signature in order to circumvent the requirement that they must be
instructed by an attorney. Further, many advocates contribute to the fidelity fund, although
they are not obliged to contribute.
It was contended in reply that the restrictions imposed on advocates were reasonably justifiable in a democratic society. While R succeeded in showing that there was ‘differentiation’
between the two professions and therefore the LPA 1983 and the Rules of Court discriminate
against advocates, the limitation on an advocate’s right to practice law in the courts is there
to serve a public interest. The benefits to be derived from the strict enforcement of the split
profession rule therefore outweigh the advocates’ right to freedom from discrimination.
In dismissing the application, it was held that:
(1) In Lesotho an advocate may only appear in courts when duly instructed by attorney.
This legal position has, in terms of the Rules of Court, been the same since at least
1943 in the subordinate courts. The LPA 1983 gave legislative imprimatur to a practice
that has been long regulated by the Rules of Court. It also went further and criminalised conduct that transgressed the Rules of Court with regard to appearance in court
by advocates without being instructed by an attorney.
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equality
(2) However, there is no duty on an attorney to brief an advocate. The attorney has right
of audience in all the courts of Lesotho without restriction.
(3) Discrimination is defined in s 18(3) of the Constitution.11 Different treatment based on
a person’s profession is not listed in s 18(3) of the Constitution. The applicant will have
to show that the ground upon which the differentiation has been effected is one which
may give rise to unfair discrimination. Gauntlett JA has stated that: ‘Careful consideration of section 18 read as an entirety indicates that it proscribes differentiation for
reasons attributable to status…’ (Road Transport Board v Northern Venture Association
[2005] C of A (CIV) NO 10/05 applied).
(4) R established that the ground upon which the differentiation has been effected is one
based on status and one which may give rise to unfair discrimination. The question
at this stage is not whether it may give rise to unfair discrimination but whether it did
indeed give rise to unfair discrimination.
(5) R succeeded in showing that advocates are treated differently from attorneys. He showed
that advocates are subjected to restrictions to which attorneys are not subjected, and that
attorneys are accorded an advantage of demanding or receiving money or instructions
directly from clients while an advocate may only do so through his/her instructing attorney.
(6) Freedom from discrimination is articulated as ‘a society in which all human beings
will be accorded equal dignity and respect regardless of their membership of particular
groups’ (President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) considered).
(7) Advocates are subjected to restrictions which other legal practitioners (attorneys) are
not subjected to. The Constitution permits a generous and purposive approach to be
adopted. It is found that the LPA 1983 and the Rules of Court discriminate against
advocates. The question now is whether the discrimination is reasonably justifiable in
a democratic society.
(8) In considering s 19 of the Constitution, substantive rather than formal equality is
considered. It has been said that formal equality means sameness of treatment before
the law. The law must therefore treat persons in like circumstances alike. Substantive
equality, on the other hand, requires the law to ensure equality of outcome and is
prepared to tolerate disparity of treatment to achieve this goal.
(9) These two professions are regulated differently in order to achieve a legitimate governmental objective. The benefits to be derived from the strict enforcement of the
split profession rule outweigh the advocates’ right to freedom from discrimination.
The restrictions imposed on and the resultant discrimination against advocates are
therefore reasonably justifiable in a democratic society. An advocate’s right to equality
before the law and to the equal protection of the law is not violated by the impugned
sections of the LPA 1983 and the Rules of Court. There is ‘mere differentiation’ on
rational grounds in order to achieve a legitimate government objective.
(10)The fact that an advocate contributes to the fidelity fund was of no assistance to R.
The reason why an attorney is not required to keep a trust account, under these
circumstances, is simply because he/she will not be entrusted – in the legal sense –
with the ‘client’s’ money. He/she will be in the full-time employ of his ‘client’.
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equality
(11) The unlimited right of audience of attorneys in the High Courts is the applicant’s main
complaint. It is that right of audience that hinders most advocates, especially junior
ones. In order to circumvent the requirement that they must be instructed by an attorney, some advocates resort to illegal activity. This is unacceptable behaviour, although
it is clear that such behaviour is caused by their desperate situation. Something must
urgently be done to attend to the grievances and aspirations of advocates and attorneys in
order to have a responsive, transparent, cost-effective and independent legal p
­ rofession.
for the applicant: advocate teele kc and advocate phafane kc; instructed by t
matooane & co, maseru
for the first and third respondents: advocate makhethe kc
for the second respondent: advocate rasekoai
amicus curiae: mr letsika
[2012] LSHC 8
Full text of judgment available at http://www.lesotholii.org/ls/judgment/high-court/2012/8
equality before the law | failure to inform accused of rights unjustified |
cruel, inhuman or degrading treatment – Antony Murithi v OCS Meru Police Station & Ors
See
exposure to danger | policing by non-professionals and youths with inadequate
training | use unjustified | See life – Nandini Sundar & Ors v State of Chattisgarh
1. Section 8 provides, inter alia, that it is discriminatory if ‘[a]
person…without a bona fide and reasonable justification…
den[ies] to a person or class of persons any accommodation,
service or facility customarily available to the public’ on the
basis of a prohibited ground.
2. Article 14 of the ECHR provides: ‘The enjoyment of the
rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status.’
3. Article 36 provides: ’Hong Kong residents shall have the
right to social welfare in accordance with the law.’
4. Article 25 provides: ’All Hong Kong residents shall be
equal before the law.’
5. Article 22 provides: ’All persons are equal before the law
and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.’
6. Article 145 provides: ’On the basis of the previous social
welfare system, the Government of the Hong Kong Special
Administrative Region shall, on its own, formulate policies
on the development and improvement of this system in the
light of the economic conditions and social need.’
7. Article 31 provides: ’Hong Kong residents shall have
freedom of movement within the Hong Kong Special
Administrative Region and freedom of emigration to other
158
countries and regions. They shall have freedom to travel
and to enter or leave the Region. Unless restrained by law,
holders of valid travel documents shall be free to leave the
Region without special authorization.’
8. Article 33 provides: ’Hong Kong residents shall have
freedom of choice of occupation.’
9. Note 4 supra.
10. Rule 2 provides: ‘2.1 This Rule applies where – (a) a
child…normally lives with two or more persons in – (i)
different households, or (ii) in the same household, where
those persons are not limited to members of a couple, or
(iii) a combination of (i) and (ii), and (b) two or more of
those persons make separate claims (that is, not a single
joint claim made by a couple) for Child Tax Credit in
respect of that child… 2.2 The child…shall be treated as the
responsibility of – (a) only one of those persons making
such claims, and (b) whichever of them has (comparing
between them) the main responsibility for him (the “main
responsibility test”), subject to Rules 3 and 4.’
11. Section 18(3) provides: ‘In this section, the expression
“discriminatory” means affording different treatment to
different persons attributable wholly or mainly to their
respective descriptions by race, colour, sex, language,
religion, political or other opinion, national or social
origin, property, birth or other status whereby persons
of one such description are subjected to disabilities or
restrictions to which persons of another such description
are not made subject or are accorded privileges or
advantages which are not accorded to persons of another
such description.’
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expression
Expression
broadcasting | impartial coverage | breached by blacklisting of independent
political commentators on election and attempted cover-up
FREEDOM OF EXPRESSION INSTITUTE V CHAIR, COMPLAINTS AND
COMPLIANCE COMMITTEE & ORS
south gauteng high court (johannesburg)
claassen cj
south africa
24 jan 2011
The Freedom of Expression Institute (‘the FXI’) submitted in two complaints to the
Complaints and Compliance Committee (‘the CCC’) – a committee established by the
Independent Communications Authority of South Africa (‘the ICASA’) to reviews compliance by a licenced broadcaster with its licencing conditions - that the South African
Broadcasting Corporation (‘the SABC’) had transgressed its own licencing conditions and
s 10(1)(d)1 of the Broadcasting Act (‘the Act’) which, inter alia, prescribes that a licensee
must meet the highest standards of journalistic professionalism and provide fair, unbiased and impartial coverage. The complaints related to the conduct of SABC’s director
of news, Dr Z, who had manipulated the coverage of the elections in Zimbabwe in 2005,
initiated disciplinary proceedings against an SABC reporter for reporting that the South
African prime minister had been heckled at a rally and blacklisted independent commentators and then covered this up. However, the CCC held that a distinction had to be made
between the ‘production’ and ‘presentation’ of news programmes, stating that it only had
jurisdiction to deal with complaints relating to the presentation, that is the broadcast, of
programmes and not their production. Accordingly, all matters relating to the personnel
involved in the making of a programme were beyond the CCC’s remit and were held to be
within the disciplinary jurisdiction of SABC and its board.
The CCC’s decision that it had no jurisdiction to entertain the complaints was made the
subject of review by the South Gauteng High Court (the ‘High Court’) on the grounds that
the CCC ‘was materially influenced by an error of law’.
In holding that SABC’s conduct was in violation of its licence and s 10(1)(d) of the Act, it
was held that:
(1) Dr Z had manipulated SABC’s coverage of the 2005 Zimbabwe elections, which in
turn violated SABC’s duties to ‘meet the highest standards of journalistic professionalism’ and ‘provide fair, unbiased, impartial and balanced coverage’.
(2) Dr Z’s instructions to initiate disciplinary proceedings against an SABC reporter for
reporting that the South African prime minister had been heckled at a rally violated
SABC’s duties to ‘meet the highest standards of journalistic professionalism’ and
‘provide fair, unbiased, impartial and balanced coverage’.
(3) Dr Z’s blacklisting of commentators violated SABC’s duties to ‘meet the highest
standards of journalistic professionalism’ and ‘provide fair, unbiased, impartial and
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expression
balanced coverage independent from governmental interference’ and ‘provide a reasonable opportunity for the public to receive a variety of points of view on matters of
public concern’.
(4) SABC’s attempt to cover up its blacklisting of commentators violated its duties to
‘meet the highest standards of journalistic professionalism’ and ‘provide fair, unbiased, impartial and balanced coverage’.
(5) The CCC had been materially influenced by an error of law in that it misinterpreted ss
6(3)2 and 10(1)(d) of the Act. The CCC’s distinction between production and presentation meant that the SABC would be free to distort the preparation of news and current
affairs programmes, and would also be the accuser and judge in its own cause, which
violates basic constitutional principles.
(6) The SABC cannot be equated with a private citizen or broadcaster who is entitled
to freedom of expression. The SABC is a publically funded channel that has a
duty to provide the highest standards of journalism and unbiased news coverage.
Whereas a private citizen or broadcaster may freely take political sides and promote party political objectives, a public broadcaster may not use public money to
do so.
(7) The CCC was wrong to interpret s 10(1)(d) of the Act in the light of regulations 34 and
37 of ICASA’s Code of Conduct as it is impermissible to interpret an act of parliament
on the basis of regulations made under it (Amalgamated Engineering Union of South
Africa v Minister of Labour 1965 (4) SA 94 (W) 96D followed).
(8) The reasoning employed by the CCC that s 10(1)(d) of the Act is not applicable as it is
given effect by the ICASA Code of Conduct (from which SABC is exempted by virtue
of the Electronic Communications Act) is flawed as it does not follow that it is also
exempt from the Broadcasting Act.
(9) The CCC was wrong to disregard SABC’s own licence conditions insofar as they
impose pre-broadcast requirements on the SABC.
(10)The CCC’s decision is therefore reviewable under s 6(2)(d) of the Promotion of
Administrative Justice Act 3 of 2000.
(11) An order was made setting aside the CCC’s decision dismissing the applicant’s complaints against the third respondent. The matter was referred back to the CCC to be
considered again, without the involvement of anyone who made the original decision. The respondents were ordered jointly and severally to pay the applicant’s costs,
including the costs of the two counsel.
for the applicant: w trengove sc and m sikhakhane; instructed by webber wentzel
for the first and second respondents: t motau sc; instructed by mkhabela huntley
adekeye inc
for the third respondent: v soni sc; instructed by mabuza attorneys
[2011] ZAGPJHC 2
160
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expression
Full text of judgment available at at http://www.saflii.org/za/cases/ZAGPJHC/2011/
2.pdf
broadcasting | impartial coverage | breached by disciplinary proceeding against
reporter | See Freedom of Expression Institute v Chair, Complaints and Compliance Committee & Ors
broadcasting | impartial coverage | breached by manipulation of election
coverage | See Freedom of Expression Institute v Chair, Complaints and Compliance Committee & Ors
broadcasting | interview with prisoner on remand | prohibition disproportion­
ate in specific circumstances
BRITISH BROADCASTING CORPORATION (BBC) & ANOR, R (ON THE
APPLICATION OF) V AHMAD (REV 1)
high court (england and wales)
hooper lj and singh j
united kingdom
11 jan 2012
A, a British citizen, has been detained in a high security prison without trial in the United
Kingdom for over seven years awaiting extradition to the United States for terrorism
charges. He has not been convicted.
C is a journalist and home affairs correspondent for the BBC. The BBC and C applied
for permission to conduct a face-to-face interview with A and to be able to broadcast the
product of that interview. On 15 July 2011 permission was granted to conduct a face-to-face
interview but with audio recording only and no permission to broadcast. The BBC wrote
a letter expressing discontent with such restrictions on 2 August 2011. On 22 September
2011 the Secretary of State for Justice (‘the Secretary of State’), applying the policy on
Prisoners’ Access to the Media (PSI 37/2010), refused permission to conduct a face-to-face
interview at all on the basis that such an interview would (1) cause distress to victims of
terrorist acts in this country and abroad and (2) risk damaging confidence in the criminal
justice system. The BBC and C, supported by A, argued that the decision refusing permission violated the right to freedom of expression in Article 10 of the European Convention
on Human Rights (‘the ECHR’), as set out in Schedule 1 to the Human Rights Act 1998
(‘the HRA’) and is therefore unlawful by virtue of s 6(1) of the HRA. They further argued
that the case was highly exceptional and that there was a strong public interest argument
for making a programme about A’s case on the following grounds: (a) A had been detained
without trail for seven years; (b) the extradition arrangements with the United States and
the Extradition Act 2003 are controversial; (c) A had been seriously injured by arresting
officers; and (d) A had had his communications monitored while in prison.
In allowing the application, it was held that:
(1) The Secretary of State’s policy in PSI 37/2010 recognises there may be instances where
a face-to-face interview will be permitted. The policy does not envisage that permission to conduct an interview will normally be refused. Rather it envisages that there
may be cases where such an interview should be permitted because its purpose is to
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expression
highlight a potential miscarriage of justice or there is some other sufficiently strong
public interest. On the evidence in the present case, C and the BBC had demonstrated
that they did require a face-to-face interview and that they had achieved all they could
through written correspondence.
(2) In relation to whether any such interview may be broadcast, the policy in PSI 37/2010
does envisage that this will normally be refused. However, in exceptional cases, it recognises that permission may be given to broadcast. The circumstances of the present
case mean it is highly exceptional. A’s rights under Article 10 of the ECHR require a
departure from the normal policy in the exceptional circumstances of the case, and
the Secretary of State has not been able to justify denying those rights on the facts of
the case. However, the Secretary of State may maintain the policy and apply it to the
great majority of cases.
(3) The Secretary of State’s first reason to support his case, that a restriction is required to
protect the victims of terrorism from distress, did not stand up to scrutiny in the circumstances of the case and with regard to the principle of proportionality. The policy
in PSI 37/2010 envisages the restrictions to apply in a context where there is a specific
victim to a particular offence, not the notion of ‘victims’ of a crime more generally and
in the abstract. However, as A has not been convicted of any offence and as the CPS
does not believe there is sufficient evidence to charge him with an offence in the UK,
there can be no particular ‘victim’. The exceptional circumstances of A’s case mean the
floodgates are not opened to allow any prisoner on remand the right to a face-to-face
interview as they are normally awaiting trial in the UK and for a short period of time.
(4) The Secretary of State’s second reason to support his case, that a broadcast interview with A would undermine the public’s confidence in the criminal justice system,
would ordinarily be a justifiable rationale in applying the policy in PSI 37/2010. A’s
case is far from ordinary. The public interest in the claimant’s freedom of expression
is particularly strong and A would not merely be using the broadcast to profess his
innocence; there were wider issues which C and the BBC wished to explore.
(5) The policy in PSI 37/2010 is not absolute; it envisages there may be exceptions. The
question in the present case is not whether the court is entitled to interfere with a
policy to a given set of facts but whether an exception to that policy must be made on
the facts of the present case in order to comply with Article 10 of the ECHR and, in
particular, to the principle of proportionality (R (on the application of ProLife Alliance)
v BBC [2003] UKHL 23, [2004] 1 A.C. 185 considered).
(6) The Secretary of State is entitled to maintain the general policy in PSI 37/2010.
However, bearing in mind the principle of proportionality, (a) while in principle the
reasons advanced by the Secretary of State to justify his decision in the present case
disclose objectives that are sufficiently important to justify restricting the right to freedom of expression and (b) the means used to achieve these objectives are rationally
connected to them, (c) the Secretary of State did not demonstrate that the means
used are no more than is necessary to accomplish their objectives and (d) it has not
been shown that a fair balance has been maintained between the right to freedom of
expression and the general interests of the community (Huang v Secretary of State for
the Home Department [2007] UKHL 11, [2007] 2 A.C. 167 applied).
162
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(7) In relation to (c) above, the Secretary of State could have made such an interview and
broadcast conditional. The Secretary of State’s stance therefore went beyond what was
necessary to achieve his legitimate objective and therefore breaches the principle of
proportionality.
(8) In relation to (d) above, it is recognised that there is an important public interest in
preventing distress to victims of terrorism. However, there are also powerful public
interests on the other side of the balance: the right of the public to receive information
about matters of public concern in a democratic society, in particular about the treatment of a prisoner who has been in detention for a long time without charge; and the
extradition arrangements applied in this case. The importance of Article 10 of the ECHR
is that, in principle, the public should be able to engage in such debates and be as fully
informed as possible and make up their own minds. As such, the Secretary of State’s
decision failed to make a fair balance and breaches the principle of proportionality.
for the claimants: lord pannick qc and tom cleaver; instructed by bbc legal
department
for the defendant: james eadie qc and martin chamberlain; instructed by treasury
solicitor
for the interested party: phillippa kaufmann qc; instructed by bhatt murphy
[2012] EWHC 13 (Admin), [2013] 1 WLR 964, [2012] 2 All ER 1089, [2012] EMLR 18, [2012] ACD 3
Full text of judgment available at http://www.bailii.org/ew/cases/EWHC/Admin/
2012/13.html
defamation | criminal liability | constitutionality upheld
SULLIVAN V ATTORNEY GENERAL & ANOR
constitutional court
egonda-ntende cj, gaswaga and burhan jj
the seychelles
31 jul 2012
S was arrested and subsequently charged in the magistrate’s court with the criminal
offence of libel, contrary to s 184 of the Penal Code, which provides that any person who
unlawfully publishes any defamatory matter concerning another person with intent to
defame that other person, is guilty of a misdemeanour termed ‘libel’. The particulars
of the offence alleged that S published a defamatory matter containing an image of M,
a cabinet minister, alongside the word ‘Traitor’ with the intention to defame M.
S sought to challenge the constitutionality of s 184 of the Penal Code on the ground that
it was contrary to Article 22(1)3 of the Constitution, which sets out the right to freedom of
expression. S further contended that the civil law in respect of defamation is sufficient,
and therefore that the criminal law contained in s 184 of the Penal Code is unnecessary
and should be struck down.
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expression
The Attorney General and the Government contended that the law under s 184 of the
Penal Code falls within the framework of the Constitution and within the ambit of Article
22(2)4 of the Constitution, which qualifies the right to freedom of expression.
In dismissing the petition, it was held that:
(1) Article 22(1) together with Article 22(2) clearly establish that the right to freedom of
expression is not an absolute right, but is expressly subject to such restrictions as
might be prescribed by law and necessary to protect the reputation, rights and freedoms or private lives of persons in a democratic society.
(2) The law on defamation set out in ss 184 to 191 of the Penal Code gives a clear indication of the legal rules applicable to the offence of libel. These provisions of the Penal
Code set out the nature of the offence as well as the defences available to individuals
charged with that offence, namely absolute privilege and conditional privilege based
on ‘good faith’.
(3) Privilege as per these provisions of the Penal Code may provide a complete bar and
answer to a charge of criminal libel, as long as applicable conditions are met.5 The
defence of privilege recognises a societal and individual interest in the expression of
opinions against public officials.
(4) The provisions of the Penal Code which have been challenged meet the requirements
of a prescribed law as they have been formulated with sufficient precision to enable
a citizen to regulate his conduct and clearly foresee the consequences his acts may
entail (Silver & Ors v the United Kingdom [1983] 5 EHRR 347 applied). Furthermore,
the offence of criminal libel under the Penal Code has been whittled down by available defences to such an extent that it poses no risk to social and political discourse in
society. Therefore, the offence of criminal libel as contained in the Penal Code is not
a threat to the right to freedom of expression.
(5) Laws on defamation and libel are necessary in a democratic society in order to ensure that
the right to freedom of expression does not constitute a licence to defame or vilify innocent
individuals (Article 17 of the United Nations International Covenant on Civil and Political
Rights 1966, Article 10 of the European Convention on Human Rights 1950, Jang Bahadur
v Principal Mohindra College AIR 1951 Pepsu 5, and Dissanayake v Sri Jayawardenapura
University [1986] 2 Sri LR 254 considered). Accordingly, the right to freedom of expression
is subject to the restriction contained in Article 22(2) of the Constitution.
(6) There is no unconstitutionality in the existing law. The arrest and subsequent institution of criminal charges against S were not an infringement of his rights, and were
executed in line with subsisting law and procedures and within the restrictions permitted by the Constitution.
Observations
There is a broad consensus against laws that criminalise defamation, and human rights
organisations and other organisations, such as the Council of Europe and the Organisation
for Security and Co-operation in Europe, have campaigned against laws that criminalise
defamation. In addition, the European Court of Human Rights has placed restrictions on
criminal libel laws due to the freedom of expression provisions set out by the European
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expression
|
fair hearing
Convention on Human Rights (Lingens v Austria [1986] 8 EHRR 407 considered).
However, repealing the criminal law on defamation is not within the purview of the court,
but is rather a matter to be decided by the legislature of the country.
for the petitioner: mr a derjacques
for the respondents: principal state counsel mr d esparon
[2012] SCCC 5
Full text of judgment available at http://www.seylii.org/sc/judgment/constitutionalcourt/2012/5
journalists | disciplinary proceedings | breached broadcaster’s duty of impartial
coverage | See Freedom of Expression Institute v Chair, Complaints and Compliance Committee & Ors
1. Section 10(1)(d) provides: ‘The public service provided
by the Corporation must-...(d) provide significant news
and public affairs programming which meets the highest
standards of journalism, as well as fair and unbiased
coverage, impartiality, balance and independence from
government, commercial and other interests.’
2. Section 6(3) of the Broadcasting Act guarantees
programming independence.
3. Article 22(1) of the Constitution provides: ‘Every person
has a right to freedom of expression and…this right includes
the freedom to hold opinions and to seek, receive and impart
ideas and information without interference.’
4. Article 22(2) of the Constitution provides that rights under
Article 22(1) ‘may be subject to such restrictions as may be
prescribed by a law and necessary in a democratic society
for protecting the reputation, rights and freedoms or private
lives of persons’.
5. Section 189 of the Penal Code provides: ‘A publication of
a defamatory matter is privileged on condition that it was
published in good faith, if the relation between the parties by
and to whom the publication is made is such that the person
publishing the matter is under some legal, moral or social
duty to publish it to the person to whom the publication is
made, or has a legitimate personal interest in so publishing
it, provided that it does not exceed in extent or matter what
is reasonably sufficient for the occasion and in any of the
following cases, namely…if the matter is an expression of
opinion in good faith as to the conduct of a person in a
judicial, official or other public capacity or as to his personal
character so far as it appears in such conduct; or…if the
matter is an expression of opinion in good faith as to the
conduct of a person in relation to any public question of
matter, or as to his personal character so far as it appears in
such conduct.’
Fair hearing
bias | disciplinary tribunal | members should not have included persons
recommending proceedings | See Ponifasio v Samoa Law Society
delay | length was unreasonable
SELWYN CHARLES V THE ATTORNEY GENERAL
high court
floyd j
antigua & barbuda
2 mar 2012
C was arrested in August 2007 for breaking and entering and held in custody at HM
Prison, Antigua & Barbuda until July 2008 when the charges were dismissed against him.
8 CHRLD
165
fair hearing
C was then allegedly re-arrested and again remanded in HM Prison. In September 2008
he was listed to stand trial but had still not done so by March 2011. In total, C claimed to
have been incarcerated for 42 months. C remained unrepresented by counsel throughout
as he could not afford to pay for representation, but he repeatedly made enquiries as to the
status of his case, which went unanswered. He has two young children, whom he alleged
he was not permitted to see. C sought redress under s 18 of the Constitution, which states
that any person has a right to redress where any provision of the Constitution has been
breached. On this basis C argued that his treatment:
(1) violated s 15(1) of the Constitution, which provides that any person charged with a criminal
offence shall be afforded a fair hearing within a reasonable time by an independent and
impartial court, and subsection 2(a), which adds that every person who is charged with a
criminal offence shall be presumed innocent until he is proven or has pleaded guilty;
(2) was contrary to s 3(a) of the Constitution, which gives every person the right in Antigua
& Barbuda to life, liberty, security of the person, the enjoyment of property and the
protection of the law; and
(3) did not comply with s 5(6) of the Constitution, which states that any person arrested
and detained and not released within a reasonable time should be released either
unconditionally or on reasonable conditions.
He argued that he was entitled to compensation under s 5(7) of the Constitution, which
makes such provision for any person who is unlawfully arrested or detained.
In dismissing the charges against C, it was held that:
Per Floyd J:
(1) As a question of fact, C has been incarcerated for a total of 42 months and the defence
has not provided any material to dispute the figure.
(2) The courts have previously considered the right to a trial within a reasonable time
and it has been noted as being an amorphous and vague concept incapable of precise
definition, but nonetheless crucial in promoting both the interests of the individual
and of society (Gooderidge v the Queen, ECSC, Court of Appeal for St Vincent & the
Grenadines, Criminal Appeal No. 13 of 1997 considered).
(3) Determining whether the right to a trial within a reasonable time is denied cannot be
done by reference to a formula. This requires a judge to balance interests which the
sections of the Constitution are designed to protect against factors which either inevitably lead to delays or otherwise cause delay (R v Morin [1992] 1 S.C.R. 771, 71 C.C.C.
(3d) 1, 12 C.R. 4th applied).
(4) From case law, the factors to be considered when making this assessment include
(a) the length of the delay, (b) the reason or explanation given to justify the delay, (c)
the responsibility of the accused for asserting his rights (waiver), (d) the prejudice to
the accused and (e) the nature of the charges (Wright George v Spencer Antigua Civil
Appeal No. 5 of 1978 and Bell v D.P.P. of Jamaica [1985] 2 All E.R. 585 considered).
(5) By using such criteria, some lengthy delays have been justified. Floyd J cited the example of the Gooderidge case when a delay of 19 months was justifiable as it had been
166
8 CHRLD
fair hearing
caused by the absence from the State of a vital prosecution and during this period the
accused had been released on bail minimising the prejudice to him as much as possible in the circumstances.
(6) In general, the principle is that the longer the delay, the more difficult it is to justify.
It is incumbent upon the Crown to show that any institutional or systemic delay is
justifiable and it is the Crown’s responsibility to bring the accused to trial.
(7) Any waiver of an individual’s constitutional rights must be clear and unequivocal and
it is not the responsibility of the accused to vigorously assert his right to trial within a
reasonable time. Any notion that C had therefore waived his rights is dismissed.
(8) C’s case can be distinguished from the Gooderidge case as C has been detained for 42
months without a date being set for trial, has not been released on bail in the meantime, and the State has not given any adequate reason for this. As such, C’s 42 months
detention constitutes inordinate delay.
(9) C’s right to fair trial within a reasonable time has been breached, the charges against
C are dismissed and he has a right to costs and damages.
for the claimant: mr john fuller; instructed by nelesia spencer
for the defendant: mr adelai smith; instructed by kendrickson kentish
Claim No. ANUHCV 2001/0069
Full text of judgment: http://www.eccourts.org/judgments/decisions/2012/HC/antigua/
SelwynCharlesvAttorneyGeneral.pdf
evidence | blood and saliva sample | inadmissible where obtained in breach of
prohibition on ill-treatment | See cruel, inhuman or degrading treatment – Antony
Murithi v Ocs Meru Police Station & Ors
evidence | informant i disclosure of identity | impact on health outweighed by
importance for party’s case | See children – Re J (A Child: Disclosure)
evidence | obtained in breach of constitutional rights | factors relevant to dis­
cretion to admit
HKSAR V MUHAMMAD RIAZ KHAN
court of final appeal
ma cj, gleeson npj, bokhary, chan and ribiero pjj
hong kong
7 may 2012
A, K and Z had dealings with an agent of the United States Drug Enforcement Agency
who they believed to be a potential buyer of heroin. A meeting between A, K and the
undercover agent took place at the agent’s hotel room. The conversation at the meeting
related to the contents of a suitcase which was later seized and found to contain 1.9kg of
8 CHRLD
167
fair hearing
heroin. The conversation had been secretly recorded by customs officers. The recording
of the discussion in the meeting amounted to evidence that K had conspired to traffic in
dangerous drugs.
A, K and Z stood trial for conspiracy to traffic in dangerous drugs. They were convicted
and each sentenced to 24 years’ imprisonment.
A, K and Z appealed their convictions and submitted to the Court of Appeal that the
recording was made in violation of their constitutional right to privacy under Article 141 of
the Hong Kong Bill of Rights (‘the Bill of Rights’) and Article 302 of the Hong Kong Basic
Law (‘the Basic Law’) and that its use at the trial was an error of law.
The Court of Appeal ordered a retrial of A and Z due to a misdirection of the jury but
rejected K’s submissions. A and Z pleaded guilty at their retrial and were each sentenced
to 18 years’ imprisonment. K was granted leave to appeal to the Court Of Final Appeal
solely on the ground of one point of law: ‘Where evidence has been obtained in breach
of a defendant’s fundamental rights protected by the Basic Law or the Bill of Rights, does
the court have a discretion as to the admission or exclusion of such evidence and, if so, on
what principles should such discretion be exercised?’
In dismissing the appeal, it was held that:
(1) The issue at the trial was whether the appellant understood the recorded conversation
to be about dangerous drugs rather than, as he testified, precious stones. In these circumstances no infringement or potential infringement of his right to privacy appears
to have operated to his disadvantage at the trial. However, the court nevertheless clarified the point of law so as not to create any uncertainty.
(2) There is no absolute bar under Hong Kong law to the reception of evidence obtained
in breach of a defendant’s constitutional rights. It is rather a matter of discretion3
(numerous overseas law cases considered as well as HKSAR v Li Man Tak [2006]
HKEC 1724, HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 and HKSAR v Wong Kwok
Hung [2007] 2 HKLRD 621).
(3) The discussion of factors to be taken into account when exercising discretion must
proceed upon an accurate appreciation of the importance of constitutional rights.
(4) The test to be employed to determine whether evidence obtained in breach of a defendant’s fundamental rights is admissible is as follows. Evidence obtained in breach of a
defendant’s constitutional rights can be received if, upon careful examination of the
circumstances, its reception (a) is conducive to a fair trial, (b) is reconcilable with the
respect due to the right or rights concerned, and (c) appears unlikely to encourage any
future breaches of those rights. The risk assessment under the third element of the
test is to be made by the courts. Rationality and proportionality can justify a discretion
to receive evidence obtained in breach of a constitutional right.
(5) The factors to be taken into account in applying the test and the weight to be accorded
to each factor is dependent upon the circumstances of each case.
(6) The recording was not adverse to the appellant having regard as to how the case was run
by him. However, even if it had been adverse, the court’s discretion could nevertheless
have been properly exercised in deciding whether to receive the recording as evidence.
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fair hearing
(7) The Interception of Communication and Surveillance Ordinance, Cap. 589 (‘the
Ordinance’), which was not in force at the time the recording was made, has subsequently supplied a legal framework for the interception of communications and surveillance.
Under the Ordinance, recordings such as the one in the present case can be authorised.
for the appellant: mr andrew bruce sc & mr phillip geoffrey ross; instructed by
hoosenally & neo and assigned by the director of legal aid
for the respondent: mr kevin p zervos sc dpp, mr david leung & ms claudia ng;
instructed by the department of justice
[2012] HKCFA 38, (2012) 15 HKCFAR 232, [2012] 4 HKC 66
Full text of judgment available at http://www.hklii.hk/eng/hk/cases/hkcfa/2012/38.html
evidence | sensitive government information | bar on disclosure would not be
prejudicial
R V AHMAD & ORS
supreme court
mclachlin cj, binnie, lebel, deschamps, fish
abella, charron, rothstein and cromwell jj
canada
10 feb 2011
In June 2006, 18 people were arrested on suspicion of plotting terrorist attacks. Ten of the
18 people were then scheduled to be tried in the Ontario Superior Court of Justice before
Dawson J. Prior to the trial, the Crown notified the Attorney General that the proceedings
might disclose potentially injurious or sensitive government information. The Federal Court
designated A and others as respondents in proceedings brought by the Attorney General,
pursuant to the s 38 scheme of the Canada Evidence Act 1985 (‘the CEA’). They then applied
to the Superior Court to challenge the constitutionality of s 38 of the CEA. The Federal
Court halted the proceedings pending the resolution of the Superior Court challenge.
The Superior Court judge held that s 38 of the CEA was unconstitutional and violated s 96
of the Constitution Act 1867 (‘the CA’) and s 7 of the Charter of Rights and Freedoms (‘the
Charter’), and asserted his own responsibility in determining any national security privilege
issues which may have arisen. The Crown then appealed to the Supreme Court of Canada.
In allowing the appeal, it was held that:
(1) Parliament is presumed to have enacted the legislation in conformity with the Charter
(R v Hamilton, 2005 SCC 47 (CanLII) [2005] 2 S.C.R. 432 at 75 applied). In the
absence of any clear and unambiguous language contradicting this, the legislation
must be interpreted to not impact trial fairness in a manner which would result in
unwarranted stays in prosecution or the failure to grant the appropriate remedies.
This presumption is supported in s 38.14 of the CEA4 which expressly protects the fair
trial rights of the accused.
8 CHRLD
169
fair hearing
(2) Section 38 of the CEA is designed to operate flexibly; it grants the Federal Court judge the
discretion to consider the public interest when making a disclosure and allows for partial,
conditional and restricted disclosures. If Parliament had intended to preclude the trial
judge from at least a summary of the information, it would have used clearer language.
(3) It will always be left to trial judges to determine whether they have a sufficient basis on
which to exercise their remedial discretion judicially. If, under the arrangements that
are made, there is not enough information to decide whether or not trial fairness has
been materially affected, the trial judge must presume that the non-disclosure order
has adversely affected the fairness of the trial.
(4) Applying the test set out in Re Residential Tenancies Act 1979 [1981] 1 S.C.R. 714 [58]
there is no violation of s 96 of the CA in this case. At the time of Confederation of
Canada, the disclosure of this type of information was an executive prerogative, not a
power of the superior court. As was noted in MacMillan Bloedel Ltd. v Simpson, 1995
CanLII 57 (SCC), [1995] 4 S.C.R. 725, if the power in question does not conform to one
exercised by a superior court in 1867, the inquiry ends.
(5) The issue in this case is not whether the court had been stripped of its authority to protect the integrity of its process, which is acknowledged in s 38.14 of the CEA. Rather, this
case relates to the court’s authority over the disclosure of material, to which the security
exemption applies. On this characterisation, s 38 of the CEA does not violate s 96 of the
CA because it does not impede the court’s power to remedy abuses of process.
(6) The challenge under s 7 of the Charter also fails because s 38 of the CEA recognises
that an unfair trial is not an option. Dawson J was not deprived of the ability to adjudicate the Charter issues that flowed from the non-disclosure order. Although the
legislation deprived trial judges of the ability to order the disclosure or inspection of
material that is withheld pursuant to s 38, the court retained the ability to order whatever remedy, pursuant to the Charter, to protect the right to a fair trial.
for the appellant: croft michaelson and nicholas e devlin; instructed by public
prosecution service of canada, toronto
for the respondent ansari: john norris and breese davies; instructed by john
norris, toronto
for the respondents abdelhaleem and durrani: rocco galati; instructed by rocco
galati law firm professional corporation, toronto
for the respondent chand: delmar doucette; instructed by marlys edwardh barristers professional corporation, toronto
for the respondent gaya: paul b slansky; instructed by paul b slansky, toronto
for the intervener the attorney general of ontario: sarah t kraicer and josh
hunter; instructed by attorney general of ontario, toronto
for the intervener the canadian civil liberties association: anil k kapoor and
lindsay l daviau; instructed by kapoor barristers, toronto
2011 SCC 6 (CanLII), [2011] 1 SCR 110
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fair hearing
Full text of judgment available at http://www.canlii.org/en/ca/scc/doc/2011/2011scc6/
2011scc6.html
evidence | statement | non-english speaking accused | correct procedure not
followed
LUC V R
court of appeal
blackman, john and conteh jja
the bahamas
21 feb 2012
L was charged with the offences of murder and armed robbery. At the end of his trial, L was
found guilty of manslaughter and armed robbery. L is a Haitian Creole speaker. The presence of an interpreter during his trial made it manifestly clear that L had, if any, only limited
facility with the English language. The investigating officer took a statement from L which
implicated L in the commission of the offences and was the only evidence against him. The
statement was taken in English and there was no evidence that it was explained to L in Creole.
TL appealed, claiming a breach of the right to be informed of a charge in a language one
understands under Article 20(2)(b) of the Constitution.
In allowing the appeal and quashing the conviction and sentence of L, it was held that:
(1) The appeal hinged on the fairness of the investigation by the police and how the statement from L was obtained.
(2) Article 20(2)(b) of the Constitution and the Judges’ Rules require that where an accused
or a suspect does not speak the official Bahamian language, which is English, a statement from him by the police should be in the language that he understands and the
nature of any charge explained to him in that language. In this case the correct procedure was not followed. There was a clear breach of Article 20(2)(b) of the Constitution.
The investigating officer should have taken the statement from L in Creole.
(3) Since the procedure for investigating and charging L was not fair, L’s statement should
not have been admitted in evidence by the trial judge. The fact that the statement
was admitted resulted in an unfair trial. For this reason, and following the English
decision in R v Luciano Monteiro Coelho [2008] EWCA Crim 627, the appellant’s conviction was quashed.
for the appellant: mr geoffrey farquharson
for the respondent: mr eucal bonaby and ms vander mackey-williams
SCCrApp & CAIS No. 61 of 2010
Full text of judgment available at http://www.courtofappeal.org.bs/download/
099195300.pdf
8 CHRLD
171
fair hearing
independent judiciary | disciplinary tribunal | members should not have inclu­
ded persons recommending proceedings
PONIFASIO V SAMOA LAW SOCIETY
court of appeal
baragwanath, fisher and galbraith jj
samoa
31 may 2012
P was prosecuted on charges of professional misconduct by the Council of the Samoa
Law Society (‘the Council’). Four charges were alleged concerning failures to account to
a client for funds received. The Samoa Law Society appointed a prosecutor and instituted
an inquiry through its Disciplinary Committee, which consisted of three members of the
Samoa Law Society who were not members of the Council. The Disciplinary Committee
recommended to the Council that four charges be instituted. The Samoa Law Society
further appointed a tribunal which consisted of five Council members, including the
President and Vice-President. The tribunal found P guilty of two charges of professional
misconduct and suspended her from practice for a period of two years. P appealed to the
Supreme Court and the appeal was dismissed.
P, having appealed unsuccessfully to the Supreme Court, appealed to the Court of Appeal,
arguing that the procedure in the original hearings was invalid. The appeal was based on
the fact that the inclusion of Council members on the tribunal failed to satisfy the requirements of independence and impartiality set out in Article 9 of the Constitution and at
common law.5
In allowing the appeal, it was held that:
(1) The principal issue is whether the appointment of a tribunal made up of five members of the Council satisfies the obligations of independence and impartiality. These
obligations are recognised both at common law and in Article 9 of the Constitution.
(2) The common law, Conventions such as the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 and national statutory regimes
for disciplinary proceedings have increasingly stressed the importance of the precept
that justice must not only be done but be seen to be done. This is also reflected in the
test for apprehended bias now recognised in England in Porter v Magill [2001] UKHL
67, [2002] 1 All ER 465.
(3) There are two aspects to the principal issue: first, whether the constitution of the
tribunal brings into play the nemo iudex principle – that no person shall be a judge
in their own cause; and, secondly, whether the constitution of the tribunal would
give rise, in the mind of a fair-minded lay observer, to a real apprehension of bias or
impartiality.
(4) These two principles are closely linked. Tribunal ‘independence’ must be judged
with regard to the manner and term of appointment of the members, existence of
guarantees against outside pressures and the extent to which the body has the appearance of independence. ‘Impartiality’ requires the tribunal to be subjectively free from
personal prejudice or bias as well as being impartial from an objective viewpoint, in
172
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fair hearing
that it must offer sufficient guarantees to exclude any legitimate doubt in this respect
(Findlay v United Kingdom [1997] 24 EHRR 221 (ECtHR) considered).
(5) These principles reflect an overriding policy recognition that lay persons must be able
to have unqualified confidence in the processes of State institutions. This value is
seen to be explicitly recognised in Article 9 of the Constitution.
(6) Even where a member of a tribunal has had no direct involvement in the preliminary
stages of a case, and no personal prior involvement, they may still be disqualified due
to breach of the nemo iudex principle and apprehended bias if they are a member of
the prosecuting entity (Re P (A Barrister) [2005] 1 WLR 3019 (Visitors to the Inns of
Court) applied).
(7) In determining whether or not the tribunal member should be disqualified in such
a situation, the key consideration is whether it appears that their connection to one
of the parties is such that they share an interest in a particular outcome (Re P (A
Barrister) (above) applied).
(8)In Re P the challenged person was held to be associated with the prosecuting entity,
even though that person was not involved in the prosecution. In the present case there
is a more direct association which directly engages the nemo iudex principle. Although
the charges were made in the name of the Samoa Law Society, it was the Council
members who recommended those charges and who governed the prosecuting body
(the Samoa Law Society). As a result, the presence of Council members on the tribunal cannot be seen as independent and P’s challenge must succeed on this ground.
(9) The challenge of the ground of impartiality is harder to establish. A decision-maker
will not always be disqualified from participating in the final determination by virtue
of having been involved in the preliminary determination. In the case of a judge,
involvement in numerous stages of a court application does not result in disqualification as judges are, by the nature of their role, independent. A distinction should be
made in this case as the decision-makers concerned are not judges.
(10)Where there is any risk of impartiality, those involved should not participate in the
final determination, particularly if any party to the proceedings or lay person might
reasonably be concerned about their impartiality in those proceedings. This applies to
tribunal members as well as judges. The tribunal must not only be truly independent
and free from actual bias, proof of which can be very difficult, but also it must appear
in the objective sense to reflect these essential qualities (Porter v Magill [2002] 1 All ER
465 (UK HL) considered).
(11) A person will not be automatically disqualified from participating in the final determination merely because they are a member of the prosecuting association. However,
that person will be disqualified if they are actively involved in that association in a
prosecutorial capacity, even if they are not involved in that particular case (Meerabux v
A-G of Belize [2005] 2 AC 513 (UK PC) considered).
(12)There is no question of actual bias by any member of the Council or the tribunal.
However, the Council in this case was not independent. Further, the process adopted
did not meet the obligations of impartiality under Article 9 of the Constitution and
common law.
8 CHRLD
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fair hearing
(13) A further question arises as to whether P has waived the right to challenge the process
by the act of acquiescing to the arrangements at the time of the hearing. However,
waiver requires full knowledge. The fact that the Supreme Court has taken a contrary
view in this case indicates that the implications of the process were not fully obvious
to P. It is particularly unlikely that a waiver would be found where there has been a
failure to comply with a constitutional obligation. As a result, it would be inappropriate to hold against the challenge on grounds of waiver (Smith v Kvaerner Cementation
Foundations Ltd [2006] EWCA Civ 242; [2006] 3 All ER 593; [2007] 1 WLR 370 (UK
CA) considered).
(14)P’s challenge succeeds on the first ground of appeal. It is therefore unnecessary to
consider the other grounds advanced. The decision of the Supreme Court is reversed
and the Samoa Law Society’s decisions are set aside. This decision has no effect on the
validity of the charges against P. If the Samoa Law Society proceeds with the charges
it must ensure that an independent tribunal is appointed, whose members have not
been involved in any way with the preliminary stages of the prosecution process in
relation to the charges against P.
for the appellant: b squire qc and s ponifasio
for the respondent: s leung wai
[2012] WSCA 4
Full text of judgment available at http://www.paclii.org/ws/cases/WSCA/2012/4.html
interpretation | best practice to be followed
CHALA SANI ABDULA V THE QUEEN
supreme court
elias cj, blanchard, tipping, mcgrath,
and william young jj
new zealand
1 nov 2011
B, of Ethiopian origin, was tried jointly with A on the charge of rape. The complainant, C,
was an 18 year old woman who had been walking home intoxicated in the early morning
in Wellington. C approached a group standing outside a bakery premises and asked to use
the toilet. C was taken into a disabled toilet by A, who forcibly removed her clothes and
sexually assaulted her. C claimed a second man then entered the toilets and raped her. The
two men then let her go. Subsequent medical examination indicated a DNA match with B
or a close relative of B. B admitted to the engagement of other consensual sexual activity
with C, but denied rape or that sexual intercourse had taken place.
B appealed against his conviction. B did not have a good command of English and, under
the New Zealand Bill of Rights, was entitled to an interpreter. A and B were provided
with a shared Oromo interpreter (the official language of Ethiopia). One of the grounds
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of the appeal was that the standard of interpretation at his trial did not meet that required
under ss 24(g),6 25(a) and 25(e)7 of the New Zealand Bill of Rights Act 1990 (‘the Act’). B
submitted that: (1) the interpreter was insufficiently qualified and experienced to interpret
at a criminal trial; and (2) that the service provided at his trial was inadequate. B did not
give evidence at trial but relied on his police statement to support his version of the sexual
activity that had taken place. B was subsequently convicted of rape and A of being party to
that rape.
In dismissing the appeal (McGrath J dissenting), it was held that:
(1) In ascertaining the substance of the right to assistance from an interpreter in a
criminal trial, it is helpful to look at the development of that right under both common law and human rights jurisprudence. The Court of Criminal Appeal drew on
the English case of R v Lee Kun (1916) KB 337 (CA) per Lord Reading CJ, where it was
held that as well as being present, the accused must have the capacity to understand
the proceedings.
(2) This principle was applied by the Privy Council in Kunnath v The State (1993) 1 WLR
1315 (PC). The defendant had made plain in his statement to court at trial that he had
not understood what the witness had said. In analysing the effect of provisions in the
Constitution of Mauritius (provisions equivalent to ss 24(g) and 25(e) of the Act), it
was held that the constitutional requirement for a fair trial meant that the defendant
should not only be present but able to understand the conduct of the proceedings
against. The Privy Council held that a trial will be unfair if the interpreter lacks the
skill and ability to translate the questions asked by counsel at trial and the answers
given by the accused. The case established that a trial judge has responsibility for
ensuring effective use is being made of an interpreter present in court to ensure the
accused’s fair trial rights are met.
(3)In R v Tran (1994) 2 SCR 951, concerned with deficiencies in the interpretation of
evidence, the Supreme Court of Canada adopted a purposive approach to interpreting the right to the assistance of an interpreter under the Canadian Charter of Rights
and Freedoms. Where an issue arose concerning the quality of interpretation at trial,
the accused had to show there had been a detrimental departure from the requisite
standard. The court held that the level of understanding protected by the right was
high; the accused had a right to know in full detail and contemporaneously what was
taking place. Criteria for the quality of an interpretation at trial included requirements
of continuity, precision, impartiality, competency and contemporaneousness. The
court acknowledged that a claimant must show that any alleged lapse by an interpreter
occurred in the course of the proceedings when a vital interest of the accused was
involved. A claimant must prove on a balance of probabilities that the interpretation
fell below the guaranteed standard.
(4) In considering whether in the present case the interpretation met the standards under
the Act, the court considered the substance of the right. An interpreter at a court or tribunal hearing should always convey, as accurately as the target language permits, the
idea or concepts expressed in the words that are being interpreted. However, it follows
from the nature of interpretation that even the highest quality of trial interpretation
cannot achieve perfection.
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(5) The standard of protection guaranteed under ss 24(g), 25(a) and 25(e) of the Act must
reflect the accused person’s entitlement to full contemporaneous knowledge of what
is happening at trial. Interpretation will not be compliant if, as a result of its poor
quality, the accused is unable to sufficiently understand the trial process or any part
of the trial and with a real risk of an impediment to the conduct of the defence. Trial
judges should at all times be alert to the quality of interpretation. Where compliance
is challenged, the cumulative effect of deficiencies must be evaluated, and whether the
standard of compliance is met will be a matter for judicial assessment in every case.
Where a breach of the right to the assistance of an interpreter under s 24(g) of the Act
is found, there is a breach of the right to a fair trial under s 25(a) of the Act; failure to
meet the required standard necessarily makes the trial unfair.
(6) B submitted that he did not receive assistance from the interpreter to the standard
required to meet his protected rights. The complaint was focused on two criticisms:
(a) the interpreter was not sufficiently qualified or experienced to interpret at a criminal trial; and (b) the interpretation was of inadequate quality.
(7) B argued that a higher qualification than NAATI 2 level (the level possessed by the
interpreter) was required to interpret at criminal trials, referring to the Ministry
of Justice recommendations that interpreters be qualified to the equivalent of the
NAATI 3 level. However, a higher level of NAATI testing was unavailable for Oromo
in New Zealand/Australia. Accordingly, the interpreter held the highest formal
qualification available in Australasia. The court held that it is not the case in New
Zealand that only those holding particular qualifications are recognised as competent to interpret at trials; citing Tran, the court observed that there was no universally
accepted standards for assessing competency. It is also the responsibility of the judge
throughout the trial to ensure that the interpreter is discharging the responsibility
competently, both by facilitating the process and observing whether it appears to be
working satisfactorily.
(8) B submitted that his rights were breached as a result of deficiencies in the translation,
arising in particular from the interpreter’s soft voice and the lapse in simultaneous
interpretation and that these caused B to fail to understand parts of the proceedings. Whether this was the case was for B to establish on a balance of probabilities.
The court noted that the trial judge regularly took the initiative in ensuring that the
interpretation process was working, and encouraged the interpreter to request the
repetition of questions or evidence before translating. Throughout the trial, the judge
remained aware of his responsibility to ensure that there was effective interpretation
that ensured the accused understood the evidence given and, where he sensed a breakdown in communication, he addressed it. This indicated the judge had discharged his
duty to ensure accurate and fair presentation of the evidence.
(9) At no stage did B indicate any difficulty understanding the evidence or trial procedure.
The logical inference from his silence was that at the time B was satisfied with the level
of understanding that the interpreter provided for him. This was also a straightforward
trial in which the issues were clear and no doubt well understood by B at the outset.
(10)While the interpretation was not at all times consistent with best practice, it was
not accepted that B had shown that the interpretation provided had fallen below the
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standard required by the Act. The court established some points of best practice: (a)
that consecutive interpretation is at all times highly desirable; (b) that the interpreter
should at all times speak in a voice loud enough for all in the courtroom to hear; and
(c) an audio recording should be made of all criminal trials where an interpreter is
providing assistance for the accused.
for the appellant: d l stevens qc
for the crown: solicitor general d b collins qc, h w ebersohn and r a kirkness
[2011] NZSC 130
Full text of judgment available at http:/www.nzlii.org/nz/cases/NZSC/2011/130.html
interpretation | inadequacy not established | See Chala Sani Abdula v The Queen
legal representation | disciplinary proceedings | not required for hearing
before school governors
G, R (ON THE APPLICATION OF) V X SCHOOL
supreme court
lord hope, lord walker
lord brown, lord kerr
and lord dyson
united kingdom
29 jun 2011
The claimant commenced employment as a music assistant at X School in December
2005. On 4 October 2007, he was suspended from his post after allegations of forming
an inappropriate relationship with M, a 15 year old boy undergoing work experience at the
school. The school launched disciplinary proceedings in November 2007 and informed
the claimant that he was entitled to be represented by a trade union representative or work
colleague. However, the claimant was advised by his solicitor not to participate in the
disciplinary proceedings until the police investigation was completed. In February 2008
the Crown Prosecution Service indicated it did not intend to take further action. Around
the same time, the school completed its investigations and sent the claimant a copy of the
school’s investigation report which concluded that there was strong evidence in favour of
the allegations.
A disciplinary hearing was set for 21 February 2008 to consider the allegations before a panel
of governors. The claimant was again informed that he would be entitled to be represented
by a trade union representative or work colleague. The claimant’s solicitors requested permission from the school to represent the claimant, which the school refused to grant. The
claimant represented himself and refused to question any witnesses or answer to any questions on the grounds that he believed the proceedings to be unfair for the reasons given in
his solicitor’s letters. Following the hearing, the panel decided to summarily dismiss the
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fair hearing
claimant. In light of this decision, the school was obliged by regulation 4 of the Education
(Prohibition from Teaching or Working with Children) Regulations 2003 (SI 2003/1184) to
report the circumstances of the dismissal to the Secretary of State for Education and Skills
so that he could consider whether to make a direction under s 142 of the Education Act 2002
prohibiting the claimant from carrying out certain types of work with children (including teaching). As such, the chair of the governors notified the Children’s Safeguarding
Operations Unit (POCA) of the claimant’s dismissal for gross misconduct.
As the Secretary of State had not invited representations in respect of this case by 20
January 2009, the applicable statutory regime to this case was established under the
Safeguarding Vulnerable Groups Act 2006. This requires the Independent Safeguarding
Authority (the ‘ISA’) to establish and maintain the ‘children’s barred list’. Any person
included on the children’s barred list is barred from a ‘regulated activity’ relating to children, which includes any form of teaching, training or instruction of children, unless the
teaching, training or instruction is merely incidental to teaching, training or instruction
of persons who are not children. Whether or not the claimant should be included in the
‘barred list’ under the 2006 Act has not yet been decided. On 19 May 2008, the claimant
issued judicial review proceedings seeking a declaration that, by reason of the denial of his
right to legal representation, the disciplinary hearing before the school governors was in
breach of his rights under Article 6 of the European Convention on Human Rights (‘the
ECHR’).8 Article 6 applies where there is a determination of civil rights and obligations.
The claimant succeeded and the judge ordered that the allegations of misconduct be heard
by a differently constituted disciplinary committee at which the claimant was to be given
the right to legal representation. The school appealed this decision and its appeal was dismissed by the Court of Appeal.
In allowing the appeal and finding that it was not a breach of Article 6 of the ECHR not to
be allowed legal representation at the school disciplinary hearing (Lord Kerr dissenting),
it was held that:
(1) The issue in this case is whether the governors’ decision not to allow the claimant to
have legal representation at the disciplinary hearing violated his rights under Article 6.
The civil right concerned in this case is the claimant’s right to practise his profession
as a teaching assistant and to work with children generally. This right would be directly
determined by a decision of the ISA to include him in the children’s barred list. His
case is that (a) the disciplinary proceedings by the school would have such a powerful
influence on the ISA proceedings as to engage Article 6(1) in both proceedings and
(b) that the consequences of being placed on the list would be so grave for him that
the Article 6(1) right meant he was entitled to legal representation in both proceedings.
(2) Therefore, the principal question raised in this appeal is, what kind of connection is
required between proceedings A (in which an individual’s civil rights are not being
explicitly determined) and proceedings B (in which they are) for Article 6 to apply to
proceedings A and B?
(3) Laws LJ in the Court of Appeal case adopted a test that the claimant may enjoy Article
6 procedural rights if the decision in any set of proceedings will have a substantial
influence or effect on the determination of the civil right or obligation. This test was
endorsed and was applied in the case.
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(4) The meaning of ‘determination’ was considered by the European Court of Human
Rights (‘the ECtHR’) in Ringeisen v Austria (No. 1) (1971) 1 EHRR 455. It held that
‘determination’ meant ‘proceedings the result of which is decisive for private rights
and obligations’. A number of other ECtHR cases were considered and it was concluded that the ECtHR adopts a context-sensitive approach to the problem and takes
a number of factors into account when doing so, including: (a) whether the decision
in proceedings A is capable of being dispositive of the determination of civil rights in
proceedings B or at least causing irreversible prejudice, in effect, by partially determining the outcome of proceedings B; (b) how close the link is between the two sets
of proceedings; (c) whether the object of the two proceedings is the same; and (d)
whether there are any policy reasons for holding that Article 6(1) should not apply in
proceedings A.
(5) The ISA is required by its guidance notes to exercise its own independent judgment
both in relation to finding facts and making an assessment of their gravity and significance. It is expected to form its own assessment of the facts on the basis of all available
evidence and there is no reason to doubt it would not do so. The lack of an oral hearing
does not prevent the ISA from making its own findings of fact. There is no reason to
suppose the ISA will be influenced profoundly (or at all) by the school’s opinion of
how the primary facts are to be viewed.
(6) Article 6(1) does not apply in the disciplinary proceedings and accordingly the appeal
is allowed.
Per Lord Hope:
(1) The internal proceedings before the employer and the barring proceedings before
the ISA are separate and distinct from each other and their decisions and procedures
are directed to different issues. The internal proceedings deal with a person’s right
to remain in employment with that employer. If the proceedings result in dismissal,
as they did in this case, the decision to dismiss may be challenged at Employment
Tribunal. But there is also a person’s right to engage in activities relating to children
more generally. This is the issue which must be determined by the ISA and which
has a right of appeal to the Upper Tribunal. The barring process that the ISA conducts may be as a result of a decision by the employer to dismiss, but there is no limit
to the sources from which information may come that require the ISA to consider
whether an individual should be included in the children’s barred list and, similarly,
an employer may decide whether or not to dismiss an employee based on a range of
factors that are not limited to the matters to which the ISA is required to have regard
by the statute. As such, the claimant is subject to two distinct sets of proceedings
which are not inextricably linked to each other.
(2) When the question of compliance with Article 6(1) of the procedure before professional bodies is being considered, it is necessary to see whether they are subject to
control by a judicial body that has full jurisdiction and does provide the guarantees of
Article 6(1). The Upper Tribunal, to which a person included in the barred list has a
right of appeal, is such a body and any breach of Article 6(1) at the initial stage is likely
to be cured by the opportunity for an oral hearing that an appeal to the Upper Tribunal
provides.
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fair hearing
(3) Laws LJ’s conclusion was that Article 6(1) required that the claimant should be afforded the opportunity to arrange for legal representation in the disciplinary proceedings
if he wanted to. There is a serious risk that if that happened, disciplinary proceedings
in the public sector would be turned into a process of litigation. It was parliament’s
wish to avoid this which is why s 10 of the Employment Relations Act 1999 states that
the employee has a right to be accompanied by an official of a trade union, and does
not expressly refer to representation by a lawyer. To require the person to be provided
with legal representation before the governors would go against that intention. Our
decision that the necessary nexus has not been established avoids these very unattractive consequences.
Per Lord Brown:
(1) The ISA’s task is to decide whether the claimant should be placed on the barred list
and it is this decision (i.e. the right to work with children) that will determine his relevant right here, not the right to continue employment with X School. In reaching that
decision, the ISA is required both to make its own independent findings of fact and to
decide whether in the light of those facts he should appropriately be included in the
barred list. The only exceptions to such an independent approach (neither exception
being applicable here) are, firstly, where there has been a conviction for a specified
offence and, secondly, where findings of fact have been made by a ‘competent body’ or
one of its committees, each of which is an independent and impartial tribunal established by law within the meaning of Article 6(1).
(2) A less satisfactory feature of the Court of Appeal’s decision is that, whereas it requires
school disciplinary panels to allow legal representation, it does not require them to
be independent and impartial (as, of course, they are not), notwithstanding that ordinarily this is regarded as an altogether more fundamental requirement (part of the
irreducible minimum guaranteed by Article 6) than any requirement for legal representation.
(3) There is also an anomaly created by the decision in the Court of Appeal as between
public sector and private sector authorities. X School is a public authority school.
Were a similar situation to arise in a private school, there could be no question of
Article 6 applying to the initial disciplinary process. As such, the claimant must be
saying that, if a private school acted as X School acted here, either the identical overall
process would be fair and involve no breach of Article 6 or that the operation of the
ISA scheme must itself in those circumstances necessarily involve a breach of Article
6. But this would be to condemn the whole ISA scheme, making assumptions as
to how the ISA would treat the findings of an employer’s disciplinary panel which
run counter to its own guidance, without argument being directed specifically to the
compatibility of the ISA scheme with Article 6 in such cases as are referred to it other
than by public authority employers.
(4) The scheme is compatible with Article 6 with regard to those cases referred to the ISA
by non-public authority employers and, indeed, by persons acting independently of
employers. If we assume that the overall ISA scheme is compatible with Article 6 in
respect of references from the private sector, it is hard to see how the initial disciplinary process can be incompatible in the present case.
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Per Lord Kerr dissenting:
(1) The Court of Appeal correctly identified the test to be applied. The ISA is required to
make its own findings of fact and to bring its own judgment to bear before deciding
whether it is appropriate to place the claimant on the barred list. The question this
raises is whether the fact that the ISA must reach its own view insulates the process from substantial influence by the earlier disciplinary hearing. The views of the
disciplinary panel and the report of the evidence given to it are likely to have had a
substantial influence on the decision of the ISA.
(2) It may be proper for the ISA to allow itself to be heavily influenced by the findings of
the disciplinary hearing. It is open to the ISA to do this, as long as it keeps faith with
the requirement that it reach its own independent view of the facts. Details of the
hearing would be with the ISA and they would be influenced by it. A judgment is not
robbed of its independent quality because it has been heavily influenced by findings
by another body that considered that evidence.
(3) The two sets of proceedings have different objectives: the first is to decide what sanction, including dismissal, it is appropriate to impose; the second is whether to include
the claimant’s name on the barred list. However, both are most certainly concerned
with the same factual matrix and the conclusions reached on the factual dispute
between the principal protagonists are central to the outcome of both sets of proceedings. In those circumstances, the conclusions reached by the disciplinary panel and
the evidence given to the panel not only could but should have a substantial influence
on the decision of the ISA. In the absence of any other remotely adversarial proceeding
in the entire process, the disciplinary hearing is bound to have a substantial influence
on the second set of proceedings.
(4) Just as legal representation at an early stage is critical to the safeguarding of an
accused person’s interests, so legal representation for a person such as the claimant
is vital at the early stage. Ex post facto contributions from a legal adviser must seek to
displace adverse findings rather than have the chance to pre-emptively nullify them.
Legal representation, if it is required in order to achieve an Article 6 compliant process, is required where it can be deployed not only to best effect but also to achieve a
real and effective contribution to the fairness of the proceedings. This is not confined
to providing an effective challenge made to the case presented against the person who
is the subject of the disciplinary proceedings. It includes advising that person on how
to participate in the proceedings, as well as introducing relevant further evidence that
may have a crucial impact on the forming of the first views on the factual issues.
(5) It is mistaken to focus exclusively on an individual stage in order to determine whether it by itself meets the requirements of Article 6. The overall process must be fair.
(6) As the disciplinary proceedings are the only occasion on which the competing cases
can be presented in direct opposition to each other, legal advice at this point is crucial.
It is the critical time for testing the evidence. To recognise the claimant’s right to be
legally represented at that stage, although it may give rise to administrative difficulties
for the conduct of disciplinary proceedings, is in accordance with the safeguarding of
his Article 6 rights.
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fair hearing
(7) The requirement that a teaching assistant be legally represented at the time allegations
are presented in evidence against him does not mean the ISA scheme should be condemned for an inevitable breach of Article 6. The scheme does not forbid the holding of
oral hearings. An option available is for the ISA to convene an oral hearing at which the
subject may be legally represented, which may require a modification of the scheme as
it is currently operating. Additionally, if it is the position that, to comply with Article 6,
a person subject to barring proceedings should be legally represented when allegations
against him are heard, it should be required of the ISA to disregard evidence given and
findings made at proceedings where that prerequisite has not been fulfilled.
for the appellant: john bowers qc, tim kenward and katherine apps; instructed by
city council legal services
for the respondent: richard drabble qc and paul draycott; instructed by keith
levin & co
for the first intervener: helen mountfield qc; instructed by equality and human
rights commission
for the second intervener (secretary of state for the home department): nathalie
lieven qc and martin chamberlain; instructed by treasury solicitors
[2011] UKSC 30, [2011] ICR 1033, [2011] UKHRR 1012, [2011] BLGR 849, [2011] HRLR 34, [2011] Med LR 473,
[2011] ELR 310, [2012] 1 AC 167, [2011] 3 WLR 237, [2011] PTSR 1230, [2011] 4 All ER 625, [2011] IRLR 756
Full text of judgment available at http://www.bailii.org/uk/cases/uksc/2011/30.html
legal representation | legal aid | court failed to ensure provision for accused
MOHD. HUSSAIN @ JULFIKAR ALI V THE STATE (GOVT. OF NCT) DELHI
supreme court
dattu and prasad jj
india
11 jan 2012
H, an illiterate foreign national, was tried, convicted and sentenced to death for an explosion that occurred on a bus, travelling from Ajmeri Gate to Nangloi on 30 December 1997.
On 27 February 1998 a number of houses were raided. Substances used in the making of
bombs were found and a number of people were arrested. On questioning by the police,
those who were arrested provided information which led to H’s arrest when his house
was raided. In the interrogation by the police, H and three other persons confessed to
their involvement in the incident on the bus. All four of these people were arrested on 21
March 1998. On completion of the investigation, H was charged under ss 302 and 307 of
the Indian Penal Code, 1860 and s 3 and in the alternative under s 4(b) of the Explosive
Substances Act, 1908. H pleaded not guilty to the offence.
During the committal proceedings before the Magistrate, H was assisted by Sri V K Jain,
employed by the State, until the case was committed to the Court of Sessions judge. Initially
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H was assisted by a learned counsel employed by the learned Court of Sessions judge;
however, midway through, the learned counsel disappeared. The records show that H was
not asked whether he was able to employ counsel or whether he wished to have counsel
appointed. Fifty-six witnesses testified and were not cross-examined by H due to his lack
of counsel. A counsel was then appointed for H. The last nine witnesses were recorded
in front of the newly appointed counsel, who thought it was not fit to cross-examine any
of them. Before the conclusion of the trial, counsel filed an application to cross-examine
one prosecution witness. This application was granted and a cross-examination was performed. At the trial H was found to be guilty and convicted of the offence, and sentenced
to death. The death penalty was confirmed by the High Court. H appealed, claiming that
his right to a fair trial under Articles 21 and 22 of the Constitution had been violated.
In allowing the appeal, it was held that:
Per Dattu J:
(1) The issue of the right to a fair trial is of vital importance. It is necessary to consider
whether the appellant was given a fair and impartial trial, and whether he was denied
the right of counsel, before discussing the merits of the appeal.
(2) H had not had the aid of counsel in any real sense, although he had been entitled to it.
(3) Section 137 of the Evidence Act, 1872 (‘the Evidence Act’) defines what cross-examination means and ss 139 and 145 speak of the mode of cross-examination with reference
to documents as well as oral evidence. Cross-examination is an acid-test of truthfulness, with the objectives being to destroy or weaken the evidentiary value of the
witness of his adversary, to elicit facts in favour of the cross-examining lawyer’s client
from the mouth of the witness of the adversary party and to show that the witness is
unworthy of belief by impeaching the credit of said witness (Kartar Singh v State of
Punjab (1994) 3 SCC 569 adopted).
(4) The right to cross-examine a witness, apart from being a natural right, is a statutory right.
Section 137 of the Evidence Act provides for examination-in-chief, cross-examination
and re-examination. Section 138 of the Evidence Act confers a right on the adverse party
to cross-examine a witness who has been examined-in-chief. Therefore every person has
a right to a fair trial by a competent court in the spirit of the right to life and personal
liberty (Jayendra Vishnu Thakur v State of Maharashtra (2009) 7 SCC 104 adopted).
(5) The object and purpose of providing competent legal aid to the undefended and
unrepresented are to ensure that the accused receives a free and fair, just and reasonable, trial of charge in a criminal case. Denial of a fair trial is as much an injustice to
the accused as it is to the victim and society, and the failure to hear material witnesses
is clearly denial of a fair trial.
(6)In Maneka Gandhi v Union of India (1978) 1 SCC 248 it has been held by a Constitution
Bench of this court that the procedure for depriving someone of his life and liberty
should be fair, reasonable and just. It is not fair or just that a criminal case should
be decided against the accused in the absence of counsel, and if it is done this way a
violation of Article 21 of the Constitution will have been breached (Mohd. Sukur Ali v
State of Assam (2011) 4 SCC 729 adopted).
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fair hearing
(7) The Government hires lawyers to prosecute and defendants hire lawyers to defend –
this is the strongest indication of the widespread belief that lawyers in the criminal
courts are necessities not luxuries. The right to counsel is deemed fundamental and
essential to a fair trial (dicta of Black J in Gideon v Wainwright followed).
(8) The judgment of the Court of Sessions cannot be sustained and must be reversed,
and the matter should be remanded with specific direction that the trial court would
assist the appellant by employing a State counsel before the commencement of the
trial until the conclusion.
Per Prasad J:
(1) The conviction and the sentence of H should be set aside as he was not given the
assistance of a lawyer to defend himself during the trial. However, it is difficult to say
whether it is a case which deserves to be remanded to the trial court for a fresh trial.
(2) Article 14 of the International Covenant on Civil and Political Rights guarantees to the
citizens of the nation’s signatory to the covenant various rights when determining a
criminal charge and confers on them minimum guarantees. These are that everyone
shall have the right to be presumed innocent until proved guilty according to law. In
the determination of a criminal charge everyone is entitled to the following minimum
guarantees: in full equality, to be informed promptly and in detail in a language which
he understands of the nature and cause of the charge against him; to have adequate
time and facilities for the preparation of his defence and to communicate with counsel
of his own choosing; and to be tried without undue delay and to be tried in his presence with legal assistance.
(3) Article 11 of the Universal Declaration of Human Rights guarantees everyone charged
with a penal offence all the guarantees necessary for the defence. These features
forming part of the International Covenant and the Universal Declaration of Human
Rights are deeply rooted in the constitutional scheme. Article 21 of the Constitution
states that no person shall be deprived of his life or personal liberty except according
to the procedure established by law and Article 22 of the Constitution confers on the
person charged the right to be defended by a legal practitioner of his choice.
(4) It is evident that in a trial before the Court of Sessions, if the appellant is not represented, it is the duty of the court to provide legal aid for him. This entitlement of free
legal aid is not dependent on the accused making an application for it; it is in fact an
obligation of the court to inform the appellant of his entitlement to it.
(5) On examining the facts of the present case H asked for the engagement of a counsel to
be provided for him at State expense; however, the counsel remained absent, leaving a
large number of witnesses without cross-examination. The learned judge of the court
failed to realise his duty to appoint counsel for the appellant, leading to him being
sentenced without a fair trial.
(6) H had been held guilty and sentenced to death in a trial which is not reasonable, fair
and just. H was arrested in 1998 for an incident that occurred in 1997, being held in
judicial custody since then. It also took the prosecution five years to produce the witnesses. The right of a speedy trial is a fundamental right.
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(7) The conviction and sentence of H are vitiated not on merit but on the ground that his
trial was not fair and just. He should be released from prison and deported to his own
country in accordance with the law and until then remain in custody.
[2012] INSC 17
Full text of judgment available at http://liiofindia.org/in/cases/cen/INSC/2012/17.html
legal representation | legal aid | freedom to choose counsel not guaranteed
CLARK & ORS V REGISTRAR OF THE MANUKAU DISTRICT COURT & ANOR
court of appeal
randerson, harrison and wild jj
new zealand
15 may 2012
The issue in this appeal was whether legally-aided defendants in criminal proceedings
were entitled to choose the counsel assigned to represent them. The appellants all faced
criminal charges in the Manukau District Court and were eligible for the grant of legal
aid in respect of category 1 and 2 offences (criminal charges are categorised by the Legal
Service Agency (‘the LSA’) into one of four different criminal proceedings. Categories 1
and 2 apply to charges with maximum penalties of less than ten years imprisonment and
categories 3 and 4 apply to charges with maximum penalties of ten years imprisonment or
more). The appellants each brought judicial review proceedings in the High Court seeking
declaratory and other relief on the grounds that they had been wrongly denied their choice
of counsel by the second respondent, the LSA.
The question for the court to decide was whether the legal aid scheme under the Legal
Services Act 2011 (‘the 2011 Act’), administered by the LSA, breached the appellants’ rights
under ss 24(c) and 24(f) of the Bill of Rights Act.
C, the first appellant, faced charges for breaching community work. She applied for legal
aid on 29 November 2010 and nominated Mr C to represent her at court. Mr C was not
assigned to her case. F, the second appellant, was charged with theft on three counts, and
did not specifically request a lawyer. A legal aid application was made on 12 November 2010
and, when this was successfully granted, F was allocated a lawyer from the Public Defence
Service. When F reappeared for a hearing on 29 November 2010, she was informed that
she no longer had the option to choose her own legal representative.
Finally V, the third appellant, was charged with driving under the influence of alcohol on
three or more occasions. V applied for legal aid but had not nominated a preferred lawyer.
V had asked for his representative to be able to speak V’s own native language or preferably to be a Tongan lawyer. Legal aid was granted and V was allocated Mr S. On 21 October
2010 V reapplied for legal aid and chose his preferred lawyer, Mr T, and on 29 November
2010 V requested that his case be reassigned to Mr T. The LSA rejected his request stating
that he had already been given a lawyer and legal aid funding.
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185
fair hearing
All three appellants faced criminal proceedings in the District Court. In the High Court
it was held that neither the right to representation nor the right to a fair trial included the
right to choose specific counsel.
In dismissing the appeal, it was held that:
Per Randerson J (Harrison and Wild JJ concurring):
(1) Article 6(3)(c) of the European Convention on Human Rights (‘the ECHR’) – the decisions of the European Commission on Human Rights (M v United Kingdom (1984) 36
DR 155, Re Application No. 127/55 24 ILR 368, X v Republic of Germany (1976) 6 DR 114
and F v Switzerland (1989) 61 DR 171 considered) do not support the proposition that
the right to counsel is to be viewed as an aspect of an accused person’s right to a fair
trial.
(2) Article 14, para (3)(d) of the International Covenant on Civil and Political Rights
(‘the ICCPR’) – the decisions of the Human Rights Committee of the United
Nations (Pratt and Morgan v Jamaica Communication No. 210/1986 & 225/1987,
CCPR/C/35/D/225/1987 (7 April 1989), Kelly v Jamaica Communication No.
253/1987, CCPR/C/41/D/253/1987 (10 April 1991), Teesdale v Trinidad and Tobago
Communication No. 677/1996, CCPR/C/74/D/677/1996 (1 April 2002) and Pinto
v Trinidad and Tobago Communication No. 232/1987 CCPR/C/39/D/232/1987 (21
August 1990) considered) also support the view that the accused is not entitled to a
choice of counsel if he or she is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation. The only measure which must be taken is
to ensure that counsel, once assigned, provide effective representation in the interests
of justice.
(3) Canadian and Australian authorities also support the contention that a legal aid applicant is not entitled to choose their own counsel (Panacui v Legal Aid Society of Alberta
[1987] 80 AR 137; R v Koumoutsidis 2006 NBCA 32, [2006] 297 NBR (2D) 186; Hakimi
v Legal Aid Commission (ACT) [2009] ACTSC 48).
(4) R v Heemi (1998) 16 CRNZ 221 (CA), which also concerned ss 24(c) and 24(f) of the
Bill of Rights Act and similar provisions in Article 6(3)(c) of the ECHR and in Article
14, para 3(d) of the ICCPR, remained good law, unaffected by the changes since the
Legal Services Act 1991. The previous and the current Legal Services Acts do not prescribe the method by which the lead provider of the legal services is to be identified or
assigned. Parliament has left that task to the LSA or the Secretary for Justice to determine as considered appropriate. Section 24(f) of the Bill of Rights Act did not entitle
the accused to choose counsel provided free of charge.
(5) Neither the right to representation nor the right a fair trial does not include the right
to choose counsel for representation at court. Even in the case of a paying client, the
right to a counsel of choice is not absolute. Just as an accused person is not obliged to
accept legal representation and may defend himself or herself in person, so a lawyer is
not obliged to act for the person charged if there are proper professional reasons not
to do so (for example, non-availability, lack of relevant experience, conflict of interest
or ethical reasons).
186
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fair hearing
for the appellants: t clee
for the second respondent: a m powell and l m inverarity; instructed by crown
law office, wellington
[2012] NZCA 193
Full text of judgment available at http://www.nzlii.org/nz/cases/nzca/2012/193.html
miscarriage of justice | compensation | approach to interpretation
ADAMS, R (ON THE APPLICATION OF) V SECRETARY OF STATE FOR JUSTICE
supreme court
lord phillips, lord hope, lord rodger,
lord walker, lady hale, lord brown,
lord judge, lord kerr and lord clarke
united kingdom
11 may 2011
A was convicted of murder in May 1993. In 2007, after referral to the Court of Appeal
by the Criminal Cases Review Commission, it was found that A had not had a fair trial
due to the incompetence of his legal representatives. They had failed to consider relevant
material provided by the prosecution which would have assisted in undermining the sole
prosecution witness. The court found that had this evidence been available, the jury might
not have been satisfied of A’s guilt. The Court expressly stated that they were not to be
taken as finding that, if the failings on the part of the defence lawyers had not occurred, A
would inevitably have been acquitted.
R was convicted of the murder of G and M and E was convicted of the murder of M in
1979. The sole evidence for the convictions was their admission which they claimed had
either been obtained through ill-treatment by the police or been concocted by the police.
An appeal by both in 1982 was rejected. When new evidence became available that could
have discredited the police officers, the convictions were quashed on the basis that there
was a distinct feeling of unease about their safety.
Having had their convictions for murder quashed by the Court of Appeal, the three appellants sought compensation under s 1339 of the Criminal Justice Act 1988 (‘s 133’); s 133(1)
was brought in to give effect to Article 14(6)10 of the International Covenant on Civil and
Political Rights 1966 There were two main issues under consideration, one relating to
the interpretation of the phrase ‘miscarriage of justice’ as used under s 133 and the other
relating to whether material unknown to the accused but known to his/her legal representatives falls within the category of ‘new or newly discovered fact’ under s 133.
In dismissing the appeal of A and allowing the appeals of E and R, it was held that:
Per Lord Phillips (Lord Hope, Lady Hale, Lord Kerr and Lord Clarke concurring):
(1) Article 14(6) should be used as the primary tool in interpreting the meaning of
s 133.
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fair hearing
(2) The primary objective of s 133 (and Article 14(6)) is to compensate a person who has been
punished and convicted for a crime that they did not commit. But the subsidiary object
is that compensation should not be paid to a person for a conviction and punishment
based on a crime that they have in fact committed. In interpreting s 133 it is important to
have both these objectives in mind and find an interpretation which balances them.
(3) ‘Miscarriage of justice’ can have different meanings. This was given consideration in R
(Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1. Lord
Steyn took the view that ‘miscarriage of justice’ only applied to the conviction of someone who was then shown to be innocent. Lord Bingham of Cornhill expressed doubts as
to whether this test was too narrow. In this case it was held that the test propounded by
Lord Steyn cannot be accepted because it renders the scope of s 133 too narrow.
(4) A fresh approach was needed and Dyson LJ in A’s Court of Appeal case11 set out four
scenarios where convictions can be quashed on the basis of new evidence:
• scenario 1: where the fresh evidence shows clearly that the defendant is innocent of
the crime of which he/she has been convicted.
• scenario 2: where the fresh evidence is such that, had it been available at the time
of the trial, no reasonable jury could properly have convicted the defendant.
• scenario 3: where the fresh evidence renders the conviction unsafe in that, had it
been available at the time of the trial, a reasonable jury might or might not have
convicted the defendant.
• scenario 4: where something has gone seriously wrong in the investigation of the
offence or the conduct of the trial, resulting in the conviction of someone who
should not have been convicted.
(5) Scenarios 3 and 4 clearly fall outside the ambit of s 133 and scenario 1 clearly falls within the meaning of s 133, but the interpretation should not be restricted to just scenario
1 for two primary reasons: (a) the various parties to Article 14(6) had voted against an
amendment to the effect of requiring proof of innocence as the threshold to obtaining
compensation. This indicated a lack of legislative intent in adopting such a narrow
approach; and (b) if only scenario 1 applied it would preclude people from obtaining
compensation because they could not prove their innocence beyond reasonable doubt
even when they were, in fact, innocent. Scenario 2 is within the ambit of s 133 with
small modification making it slightly stricter.
(6) So the final test for the meaning of ‘miscarriage of justice’ under s 133 is as follows: ‘A
new fact will show that miscarriage of justice has occurred when it so undermines the
evidence against the defendant that no conviction could possibly be based upon it’.
(7) The ultimate decision of whether or not compensation is payable under s 133 rests
with the Secretary of State.
(8) Denial of compensation does not infringe the presumption of innocence under Article
6 of the European Convention on Human Rights (‘the ECHR’) as these are two separate issues. A’s counsel, in arguing the case, referred to Article 6(2)12 of the ECHR and
argued that on the quashing of the conviction the authorities are required to hold that
A is presumed innocent. A narrow interpretation of Article 14(6) would conflict with
188
8 CHRLD
fair hearing
Article 6(2). He provided case law from the ECHR that showed that the presumption
of innocence may be violated where ‘following an acquittal, a court or other authority
expresses an opinion of continuing suspicion which amounts in substance to a determination of guilt of the person concerned’: Sekanina v Austria (1994) 17 EHRR 221;
Leutscher v The Netherlands (1997) 24 EHRR 180; Rushiti v Austria (2001) 33 EHRR 56;
Weixelbraun v Austria (2003) 36 EHRR 45; Orr v Norway (Application No 31283/04)
(unreported) 15 May 2008, BAILII: [2008] ECHR 387; and Hammern v Norway
(Application No 30287/96) (unreported) 11 February 2003, BAILII: [2003] ECHR 75.
Lord Phillip dismissed this argument, applying the rulings given by Hughes LJ in R
(Allen) (formerly Harris) v Secretary of State for Justice [2009] 2 All ER 1 (para 35).
(9) The appeals of E and R were allowed as the evidence against them had been so undermined that no conviction could possibly be based on it. Their cases fall within Article
14(6) and s 133 so they are entitled to be compensated. A’s appeal was dismissed
because his case fell within scenario 3 (above) rather than scenario 1 or 2 and did not
satisfy the test for a miscarriage of justice.
Per Lord Clarke:
Category 2 is an appropriate formulation of the test. Compensation is only payable where,
in the light of the new or newly discovered fact, no reasonable jury, properly directed,
could have convicted.
Per Lord Judge, Lord Brown, Lord Rodger and Lord Walker (dissenting):
(1) The observations of Lord Steyn in Mullen (above) were correct. The test of innocence
is the only acceptable test. Including scenario 2 will result in people who have actually
committed the crime that they were convicted of will be able to receive compensation
under s 133.
(2) For the purposes of s 133 the reversal of the conviction and the consequent revival
of the legal presumption of innocence is not part and parcel with the definition of a
miscarriage of justice for these purposes and the use of the words ‘beyond reasonable
doubt’ is significant in this context.
(3) The operation of the compensation scheme under s 133 is confined to miscarriages
of justice in which the defendant was convicted of an offence of which he/she was
truly innocent. Section 133 is concerned with the fact of guilt rather than the legal
presumption of innocence.
Observations
(1) All four dissenting judges were inclined to remit the compensation claims of E and R
to the Secretary of State for further consideration.
(2) There was some disagreement as to the meaning of the phrase ‘new or newly discovered fact’ with regard to A. Lord Phillips (Lady Hale, Lord Kerr and Lord Clarke
agreeing) felt that it should be interpreted generously as in the Criminal Procedure
Act 1993 s 9(6)13 Lord Hope disagreed, saying that material disclosed to the defence
by the time of trial could not be said to be new or newly discovered when taken into
account at the appeal stage.
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189
fair hearing
for the first appellant: tim owen qc and hugh southey qc; instructed by hickman
and rose
for the second appellant: john o’hara qc and joseph brolly; instructed by mccartney and casey
for the third appellant: eilis mcdermott qc and donal sayers bl; instructed by
macdermott, mcgurk and partners
for the first respondent: robert tam qc and james strachan; instructed by treasury solicitor
for the second and third respondents: paul maguire qc and david scoffield bl;
instructed by departmental solicitor’s office
for the first intervener (justice): alex bailin qc and alison macdonald; instructed by kirkland & ellis international llp
for the second intervener (barry george): ian glen qc and gordon bishop;
instructed by wells burcombe
[2011] UKSC 18, [2012] 1 AC 48, [2011] 3 All ER 261, [2011] NI 42, 31 BHRC 71, [2011] 2 WLR 1180
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2011/18.html
presumption of innocence | not breached by refusal of compensation for mis­
carriage of justice | See Adams, R (on the application of) v Secretary of State for Justice
witnesses | cross-examination | impossible where court failed to ensure provision
of legal representation for accused | See Mohd. Hussain @ Julfikar Ali v The State (Govt. of NCT) Delhi
1. Article 14 provides that ‘(1) No one shall be subjected to
arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his
honour and reputation. (2) Everyone has the right to the
protection of the law against such interference or attacks.’
2. Article 30 provides that ‘The freedom and privacy of
communication of Hong Kong residents shall be protected
by law. No department or individual may, on any grounds,
infringe upon the freedom and privacy of communication
of residents except that the relevant authorities may inspect
some communication in accordance with legal procedures
to meet the needs of public security or of investigating into
criminal offences.’
3. HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 at pp
443A-448F.
4. Section 38.14 provides that: ‘(1) The person presiding
at a criminal proceeding may make any order that he or
she considers appropriate in the circumstances to protect
the right of the accused to a fair trial, as long as that order
complies with the terms of any order made under any of
subsections 38.06(1) to (3) in relation to that proceeding,
any judgment made on appeal from, or review of, the order,
or any certificate issued under section 38.13. (2) The orders
that may be made under subsection (1) include, but are not
190
limited to, the following orders: (a) an order dismissing
specified counts of the indictment or information, or
permitting the indictment or information to proceed only in
respect of a lesser or included offence; (b) an order effecting
a stay of the proceedings; and (c) an order finding against
any party on any issue relating to information the disclosure
of which is prohibited.’
5. Article 9 (Right to a fair trial) provides: ‘(1) In the
determination of his civil rights and obligations or of any
charge against him for any offence, every person is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established under the
law. Judgment shall be pronounced in public, but the public
and representatives of news service may be excluded from
all or part of the trial in the interests of morals, public order
or national security, where the interests of juveniles or the
protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the Court in
special circumstances where publicity would prejudice the
interests of justice. (2) Nothing in clause (1) shall invalidate
any law by reason only that it confers upon a tribunal,
Minister or other authority power to determine questions
arising in the administration of any law that affect or
may affect the civil rights of any person. (3) Every person
charged with an offence shall be presumed innocent until
8 CHRLD
fair hearing
proved guilty according to law. (4) Every person charged
with an offence has the following minimum rights: (a) To
be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation
against him; (b) To have adequate time and facilities for the
preparation of his defence; (c) To defend himself in person
or through legal assistance of his own choosing and, if he has
not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require; (d) To examine
or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him; (e) To have
the free assistance of an interpreter, if any doubt exists as to
whether he can understand or speak the language used in
Court.’
6. Section 24(g) provides that: ‘Everyone who is charged with
an offence shall have the right to have the free assistance of
an interpreter if the person cannot understand or speak the
language used in court.’
7. Section 25 provides that: ‘Everyone who is charged with an
offence has, in relation to the determination of the charge,
the following minimum rights: (a) the right to a fair and
public hearing by an independent and impartial court…(e)
the right to be present at the trial and to present a defence.’
8. Article 6 provides: ‘(1) In the determination of his civil
rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of
the trial in the interest of morals, public order or national
security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties
|
family life
so require, or the extent strictly necessary in the opinion of
the court in special circumstances where publicity would
prejudice the interests of justice.’
9. Section 133 provides: ‘Subject to subsection (2) below,
when a person has been convicted of a criminal offence
and when subsequently his conviction has been reversed or
he has been pardoned on the ground that a new or newly
discovered fact shows beyond reasonable doubt that there
has been a miscarriage of justice, the Secretary of State shall
pay compensation for the miscarriage of justice to the person
who has suffered punishment as a result of such conviction.’
10. Article 14(6) provides: ‘When a person has by a final
decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has
been pardoned on the ground that a new or newly discovered
fact shows conclusively that there has been a miscarriage of
justice, the person who has suffered punishment as a result
of such conviction shall be compensated according to law.’
11. [2009] EWCA Civ 1291, paragraphs 19 and 20.
12. Article 6(2) provides: ‘Everyone charged with a criminal
offence shall be presumed innocent until proved guilty
according to law.’
13. Section 9.6(a) provides: ‘Where a conviction was
quashed by the Court on an application under section 2 or
a convicted person was pardoned as a result of a petition
under section 7, or has been acquitted in any re-trial, a fact
which was discovered by him or came to his notice after the
relevant appeal proceedings had been finally determined or
a fact the significance of which was not appreciated by the
convicted person or his advisers during the trial or appeal
proceedings…’
Family life
adoption | validity l wife’s consent not established |
See
property –
Ghisalal v Dhapubai
(D) By Lrs
children | adoption | parental consent | not required where child’s best inter­
ests not served
ANS & ANOR V ML
court of session (scotland)
lord president hamilton, lady paton and lord kingarth
united kingdom
21 jun 2011
A and D presented a petition for adoption in respect of a child, DL, at Dumbarton Sheriff
Court. The petition was opposed by M, the biological mother of the child. In the course
of these proceedings, a devolution issue arose in respect of which the sheriff referred
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191
family life
the following question to the Inner House of the Court of Session: ‘[W]hether section
31(3)(d)1 of the Adoption [and Children] (Scotland) Act 2007 (‘the 2007 Act’) is compliant
with the respondent’s and the child’s right to respect for family life in terms of Article
82 of the European Convention on Human Rights (‘the ECHR’) and therefore whether
compatible with ECHR rights and community law in terms of s 29(2)(d)3 of the Scotland
Act 1998.’
It was argued on behalf of the respondent that s 31(3)(d) of the 2007 Act was not in accordance with the law nor necessary in a democratic society. The reference to ‘welfare’ was
vague, irrational and impermissibly speculative. The state should not strip the child of its
natural identity unless the parent was at fault.
It was argued on behalf of the Lord Advocate that the overriding consideration in adoption proceedings was that identified in s 14(3)4 of the 2007 Act. It was appropriate, when
anxious decisions had to be made in adoption cases, that the test for dispensing with the
consent of a parent should not be too narrow or too rigid.
In answering the referred question in the affirmative and remitting the case to the sheriff
to proceed, it was held that:
(1) The particular obligations under Article 8 of the ECHR imposed on contracting states
have to be interpreted in the light of the United Nations Convention on the Rights of
the Child (‘the Convention’) (to which the United Kingdom is a signatory) and possibly of other international conventions.
(2) The Convention accordingly acknowledges the importance of the connection between
a child and his or her biological parents but likewise acknowledges that states may
legitimately have a system of adoption which inevitably disrupts that natural relationship. The obligation of the state is to ensure that in any such system the best interests
of the child are the paramount consideration.
(3) A domestic test for dispensing with biological parental consent which comprises, or
includes, the criterion of the child’s best interests (a whole-life welfare test) – as s 31(3)
of the 2007 Act does – is compliant with the Convention. This proposition is supported by a number of observations made in previous cases (Kearns v France (2010)
50EHRR33 (para 79); Chepelev v Russia (2008) 47EHRR37 (para 31) and Söderbäck v
Sweden (2000) 29EHRR95 (para 34) considered).
(4) The welfare test is not impermissibly vague. The principle that laws must be of general application may lead to statutory provisions not always being precise (Kuijper v
Netherlands (2005) 41EHRRSE 16) considered).
(5) Accordingly, s 31(3)(d) of the 2007 Act is ‘in accordance with the law’. It also has a
legitimate aim (the best interests of children) and seeks to achieve that aim by proportionate measures. It is thus justified and is ‘necessary in a democratic society…for
the protection of health or morals, or for the protection of the rights and freedoms of
others’ (including children).
(6) Section 31(3)(d) of the 2007 Act was within the margin of appreciation allowed to
the Scottish Parliament and accordingly within its competence to make such a
provision.
192
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family life
for the petitioners: ms dowdalls; instructed by jk cameron, glasgow
for the respondent: miss clarke; instructed by drummond miller llp
for the lord advocate: mr duncan; instructed by the scottish government legal
directorate
[2011] ScotCS CSIH_38, 2011 Fam LR 106, 2012 SCLR 172, 2012 SC 8, 2011 GWD 21-482, 2011 SLT 1204, [2011]
CSIH 38
Full text of judgment available at http://www.bailii.org/scot/cases/ScotCS/2011/
2011CSIH38.html
children | disputed paternity | compulsion to undergo test justified for fur­
therance of family values
DLAMINI V DLAMINI & ANOR
high court
mamba j
swaziland
2 feb 2012
On 6 April 1979 P gave birth to a boy, M. Prior to the birth, S and P had been romantically
involved. P informed S that M had been conceived and that S was the biological father. P
and S married on 9 September 1983. P claims that S did not deny paternity until 2008
when S filed an application to have his marriage to P annulled claiming that P had fraudulently misrepresented to S that M was his biological son. S argued that he was attending
military training in the Republic of Kenya for ten months and one week, during which time
he had no physical contact with P. S believes M was conceived while he was attending this
military training. P and M refused to submit themselves for paternity testing. P argued
that since M was no longer a minor there was no need for the application as neither M nor
S would suffer if the tests were not conducted. In addition, P and M argued that the court
has no jurisdiction or power to compel them to undergo the required medical examination.
In ordering all parties to undergo a paternity test or examination, it was held that:
Per Mamba J:
(1) The institution of marriage relies on sustaining core marital privileges and any obstacles to this ideal, such as lack of trust or suspicion between a husband and wife,
must be removed (dicta of Gubbay CJ in Rattigan & Ors v Chief Immigration Officer,
Zimbabwe & Ors, 1995 (2) SA 182 at 188 considered).
(2) Scientific knowledge and procedure is there to remove obstacles such as suspicion or
curiosity. It is in the interests of the judicial system to uncover the truth which justice
demands.
(3) Under Article 27 of the Constitution the court has an obligation to sustain, protect
and preserve the harmonious cohesion and respect for family and family values.5 The
8 CHRLD
193
family life
removal of any cause for mistrust or suspicion within the family unit is one way of
achieving this end.
(4) While it was previously held in Palmer v Palmer, 1955 (3) (Orange Free State Provincial
Division) SA 56 (OP) that a husband’s guardianship over his wife did not give him
the right to interfere with her personal freedom to the extent that he can force her to
undergo a medical examination against her will, and did not permit the court to make an
order compelling a medical examination, S’s application was different. The application
was based on S’s right to know whether he is the biological father of M, and P has an
obligation to disclose this information to S in pursuit of a happy and harmonious family.
(5) The court has discretionary powers outside the rules and the common law. Where the
pursuit of truth conflicts with the right to privacy of the party who does not consent to
undergoing medical tests or examination, the court will invoke its inherent jurisdiction if justice demands this truth in order to maintain essential family values (dicta of
Mamba J in M v R, 1989 (1) SA 416 (OPD) considered).
for the appellant: mr t mlangeni
for the respondents: mr z magagula
[2012] SZHC 10
Full text of judgment available at http://www.swazilii.org/sz/judgment/high-court/2012/10
children | extradition | impact | approach to safeguarding interests | See move­ment
– HH & Ors v Deputy Prosecutor of the Italian Republic, Genoa
children | parental contact | same-sex former partner of parent entitled to
continue relationship
CM V NG
high court (western cape)
gangen aj
south africa
26 APR 2012
C and N were in a same sex relationship for a number of years and began living together
in May 2005. No marriage was registered. During the relationship a child, conceived by
artificial insemination, was born to N. In November 2010 the relationship ended. C continued to have contact with the child after separation of the parties by mutual agreement
until 12 April 2011, when N advised C that she wanted to stop her contact with the child on
the basis that it was not in the child’s best interests.
On 13 April 2011 C (who has no biological bond with the child) brought an application
under ss 23 and 24 of the Children’s Act 38 of 2005 (the Act)6 for an order granting full
co-parental responsibilities and rights in respect of a minor child as contemplated by
194
8 CHRLD
family life
ss 18(2), 18(3), 18(4) and 18(5) of the Act.7 N submits that under s 23, C may apply for care
or contact, but not both, and that as C is not applying for the child to be placed in her care,
she is only entitled to contact. Furthermore, N submits that as C has not alleged that N is
not a suitable guardian, C is not entitled to apply under s 24(3) for guardianship. The two
questions of law to be determined are (1) whether an interested person applying under s 23
of the Act is entitled to an order for both care and contact when it is in the best interests of
the child and (2) whether an interested party applying under s 24 of the Act for guardianship is only entitled to such guardianship if the party can show that the existing guardian
is not suitable.
The application was opposed and a family advocate was authorised to investigate the best
interests of the child. In May 2011 C approached the court for an order to compel N to
co-operate with the family advocate and an expert identified by C. The application was
postponed to 1 August 2011, and an interim contact order was made. On 3 August 2011 the
report of the family advocate was unavailable and an order was granted increasing the contact under the interim contact order. The matter was further postponed to 29 November
2011. In September 2011 C approached the High Court for an order indicting N from relocating to Johannesburg with the minor child. A new contact arrangement was made by the
court pending finalisation of the matter.
C alleged that it was the intention of both parties to have the child together and that she is
the child’s other parent whereas N alleged her decision to have the child was not dependent on her relationship with C. C submitted documents indicating the parties jointly
approached the fertility clinic for the artificial insemination procedure. C initiated further
correspondence between the parties wherein N acknowledged that C is the other parent of
the child. N relied on the fact that she is the only parent registered on the birth certificate,
whereas C pointed out that as the child was born in England it was not possible for both
parties to be registered as the parents. C contributed to the expenditure in relation to the
fertilisation process (although the extent and scope of the contributions is in dispute) and
in 2011 began making financial contributions to the maintenance of the child.
The family advocate’s view is that the child was brought up in a household that resembled
a family unit to the child and that there is a strong possibility that both parties presented
themselves as parents during the child’s formative years.
In granting the application, it was held that:
(1) If the parties were in a heterosexual relationship, a man in C’s position would have
been recognised as the father figure and that the bond with the child would have been
recognised as being that of a parent. On the facts, it is evident that the intention of
the parties was to have the child together and that C played the role of a parent to the
minor child.
(2) Regarding the two main points of law to be determined: (a) an interested person
applying under s 23 of the Act is entitled to an order for both care and contact when
it is in the best interests of the child (under the rule in Wheeler v Wheeler 2011 (2) SA
459 KZP); and (b) an interested party applying under s 24 of the Act for guardianship
is not only entitled to such guardianship when the party can show that the existing
guardian is unsuitable.
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family life
(3) The judge considered two overarching considerations of ‘the High Court as upper
guardian of all children’ and ‘the best interest of the child’ as relevant in these
proceedings.
(4)In Ex parte Kedar 1993(1) SA 242 the court held that as upper guardian it was entitled
to grant joint guardianship to the parties in the best interest of the child and that did
not deprive the existing guardian of her rights and responsibilities.
(5) The judge suggested that the court has powers as upper guardian of all children to
grant applications for guardianship to any person without affecting the rights of an
existing guardian, and without being limited by s 24(3).
(6) The factors to be taken into account when considering an application under ss 23 and
24 of the Act are: (a) the best interests of the child; (b) the relationship between the
applicant and the child and any other relevant person and the child; and (c) any other
factor that should, in the opinion of the court, be taken into account.
(7) The degree of commitment that C has shown to the child and the extent to which C
has contributed towards expenses in connection with the birth and the maintenance
of the child are important. The fact that the minor child was brought up in a household that resembled a family unit to the minor child was important. The child should
therefore be entitled to continue that relationship and bond with C.
(8) The factors (referred to in s 7 of the Act) for determining the best interests of the child
relate, inter alia, to: (a) the personal relationship between the child and the parents, or
any specific parent and the child and any other person; (b) the attitude of the parent
towards exercising parental responsibilities and rights; (c) which action or decision
would avoid or minimise further legal or administrative proceedings; (d) the likely
effect on the child of any change in the child’s circumstances; (e) the child’s age,
maturity and stage of development, gender and background; (f) the child’s physical
and emotional security and intellectual, emotional, social and cultural development;
(g) the need to bring up the child within a stable family environment; and (h) the need
to protect the child from any physical or psychological harm.
(9) Having considered the relevant factors and criteria, the judge is in no doubt that C is
entitled to the parental responsibility and rights set out in s 18 of the Act as it would be
in the best interests of the child to have such a relationship with two parents.
(10)The normal rule for costs in disputes relating to children, where both parties have
acted in the best interests of the child, is for each party to bear its own costs (McCall
v McCall 1994(3) SA 201 (CPD) considered). In this matter, the judge considered that
N’s conduct warranted a costs order against her, considering that N’s conduct led C to
approach the court for assistance on a number of occasions.
(11) The court ordered that: (a) C and N shall be co-holders of parental responsibilities
and rights in respect of the minor child as contemplated in ss 18(2)-18(5) of the Act;
(b) C and N shall be co-guardians of the minor child; (c) the minor child shall have
his primary residence with N; (d) the parties shall enter into a parental plan within 60
days from date hereof; (e) in order to facilitate joint decision-making and the parental
plan, a facilitator shall be appointed by the parties; (f) unless otherwise agreed by the
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family life
parties, or otherwise directed by the facilitator, the parties shall bear the costs of the
facilitator in equal shares; and (g) if the parties are unable to reach agreement on
any issue concerning the children’s best interests or any issue where a joint decision
is required in respect of the children, the dispute shall be referred to the facilitator;
whose recommendations will be binding on the parties.
for the applicant: ms anderson
for the respondent: ms maas
for the amicus curiae (centre for child law): ms skelton
[2012] ZAWCHC 37, 2012 (4) SA 452 (WCC), [2012] 3 All SA 104 (WCC)
Full text of judgment available at http://www.saflii.org/za/cases/ZAWCHC/2012/37.html
co-habitation | death of partner | duty of support could be inferred
PAIXÃO & ANOR V ROAD ACCIDENT FUND
supreme court
mthiyane dp, cachalia, tshiqi,
petse jja and southwood aja
south africa
26 sep 2012
G had been living with P and her children, one of whom was S, for over four years at the
time of G’s death from a motor vehicle collision in January 2008. Damages for loss of
maintenance and support arising from G’s death were claimed by P and S from the Road
Accident Fund (‘the Fund’) under s 17 of the Road Accident Fund Act 56 of 1996 (‘the
Act’). Damages were claimed to the extent required to place P and S in the same position
as they would have been in had G not been killed.
The South Gauteng High Court, Johannesburg dismissed the original claim on the
grounds that the deceased supported P and S out of ‘gratitude’, ‘sympathy’ and ‘kindness’
rather than from any legal duty. A legal duty is required for common law remedy in a
‘dependants’ action’ such as the instant case.
P and S appealed to the Supreme Court, arguing that P and G had undertaken a reciprocal
duty of support, which, given the nature of their relationship, was a right worthy of the
law’s protection in a ‘dependants’ action’ claim.
It was agreed that G and P were in a ‘permanent life partnership’ at the time of G’s death
and that G supported P and S financially. G paid all household and recreational expenses
for P and S and witnesses testified that G saw P as his wife. Moreover, G and P executed
a joint will in June 2005, referring to P’s children as ‘our daughters’, and made marriage preparations with P, intending to be married in April 2008. Given these facts it was
argued there was a tacit agreement between G and P that he would support P and her
children before and after being formally married.
8 CHRLD
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family life
The Fund maintained that no legally enforceable duty of support existed between G and P
or G and S, and even if one was found, it should not be enforceable against a third party
such as F given the potential indeterminate future liabilities that may result from such a
duty being found in life partnerships.
The question facing the Supreme Court was whether the common law should be developed to extend a ‘dependants’ action’ to permanent heterosexual relationships.
In upholding the appeal and granting the claimed damages with payment of agreed costs,
it was held that:
(1) A claim for maintenance and loss of support suffered as a result of a breadwinner’s
death, recognised at common law as a ‘dependants’ action’, requires the claimant
to possess a right which is worthy of the law’s protection. If such a right is established, the claimant is entitled to compensation for their proven loss. The object of
the remedy is to place the dependants of the deceased in the same position, as regards
maintenance, as they would have been in had the deceased not been killed.
(2) The scope of ‘dependants’ action’ is not confined to those persons who the deceased
has a legal obligation to support, but also to those the deceased was ‘accustomed to
support from a sense of duty’ (Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA
1319 (A) considered). The remedy has been expanded over time to include husbands,
divorcees and same-sex partnerships, with the logic of ensuring that ‘the common law
accords with the dynamic and evolving fabric’ of society (Du Plessis v Road Accident
Fund 2004 (1) SA 359 (SCA) considered).
(3) A ‘dependants’ action’ has two hurdles to satisfy. Firstly, that an express or tacit agreement exists between a claimant and the deceased. This agreement must have created a
binding legal obligation requiring the deceased to maintain and support the claimant.
Secondly, that the nature of the relationship between a claimant and the deceased be
akin to a family relationship, in which case it is deserving of the law’s protection.
(4) The binding legal obligation between the claimant and the deceased may be made
expressly or tacitly, orally or in writing. Proving one exists requires more than evidence of co-habitation or joint maintenance of a shared home. The partnership must
have similar characteristics to a marriage, particularly a reciprocal duty of support.
However no agreement to marry is required before such a duty can be established.
(5) The duty of support must be proved by credible evidence that can allow a court to infer
that, in absence of an express agreement, a tacit agreement to assume the duty exists.
On the evidence, the actions of G in the years before his death showed a tacitly undertaken reciprocal duty of support to P. This was akin to a pactum de contrahendo for G
to perform certain duties before the ‘main agreement’ of marriage came into effect.
S’s right to claim derives from the same ‘family relationship’.
(6) An obligation ‘worthy of the law’s protection’ is determined by the boni mores criterion or ‘the legal convictions of the community’ (Minister van Polisie v Ewels 1975 (3) SA
590 (A) considered). Life partnerships have received increasing legislative and judicial recognition and, given that the North Gauteng High Court extended the scope
of the ‘dependants’ action’ to co-habiting partners in a heterosexual permanent life
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8 CHRLD
family life
partnership previously, the use of boni mores should reach a similar conclusion in the
case of P, S and G (Verheem v Road Accident Fund 2012 (2) SA 409 (GNP) considered).
(7) ‘Dependants’ action’ is to be extended to unmarried persons in heterosexual relationships who have established a contractual reciprocal duty of support.
for the appellant: b ancer sc; instructed by norman berger & partners inc,
johannesburg, lovius block, bloemfontein
for the respondent: s budlender; instructed by lindsay keller, johannesburg,
matsepes inc, bloemfontein
[2012] ZASCA 130, [2012] 4 All SA 262 (SCA), 2012 (6) SA 377 (SCA)
Full text of judgment available at http://www.saflii.org/za/cases/ZASCA/2012/130.html
domestic violence | meaning | restriction to physical violence not appropriate
| See women – Yemshaw v London Borough of Hounslow
inheritance | marriage | woman-to-woman marriage | surviving wife could claim
| See women – Katam v Chepkwony & Anor
marriage | gender reassignment | inability to marry under new gender identity
not unconstitutional | See private life – W v Registrar of Marriages
property | inheritance | child | wife’s consent to adoption not established |
property – Ghisalal v Dhapubai (D) By Lrs
See
1. Section 31 provides: ‘(1) An adoption order may not be made
unless one of the five conditions is met. (2) The first condition
is that, in the case of each parent or guardian of the child, the
appropriate court is satisfied – (a) that the parent or guardian
understands what the effect of making an adoption order would
be and consents to the making of the order (whether or not the
parent or guardian knows the identity of the persons applying
for the order), or (b) that the parent’s or guardian’s consent to
the making of the adoption order should be dispensed with on
one of the grounds mentioned in subsection (3). Those grounds
are – (a) that the parent or guardian is dead, (b) that the parent
or guardian cannot be found or is incapable of giving consent,
(c) that subsection (4) or (5) applies, (d) that, where neither of
those subsections applies, the welfare of the child otherwise
requires the consent to be dispensed with.’
3. Section 29 provides: ‘Legislative competence. (1) An Act
of the Scottish Parliament is not law so far as any provision
of the Act is outside the legislative competence of the
Parliament. (2) A provision is outside that competence
so far as any of the following paragraphs apply – (a) it
would form part of the law of a country or territory other
than Scotland, or confer or remove functions exercisable
otherwise than in or as regards Scotland, (b) it relates
to reserved matters, (c) it is in breach of the restrictions
in Schedule 4, (d) it is incompatible with any of the
Convention rights or with [EU] law.’
2. Article 8 provides: ‘(1) Everyone has the right to
respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by
a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in
a democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others.’
5. Article 27 provides: ‘(1) Men and women of marriageable age
have a right to marry and found a family. (2) Marriage shall be
entered into only with the free and full consent of the intending
spouses. (3) The family is the natural and fundamental unit of
society and is entitled to protection by the state. (4) Motherhood
and childhood are entitled to special care and assistance by
society and the state. (5) Society and the state have the duty to
preserve and sustain the harmonious development, cohesion
and respect for the family and family values.’
8 CHRLD
4. Section 14(3) provides: ‘The court or adoption agency is
to regard the need to safeguard and promote the welfare
of the child throughout the child’s life as the paramount
consideration.’
199
family life
|
health
6. Section 23 deals with applications for care or contact.
Section 24 deals with applications for guardianship.
Applications under these sections may be brought by
‘any person having an interest in the care, well-being or
development of a child.’
7. Section 18(2) deals with parental rights and
responsibilities, being care and contact, and
guardianship and maintenance, Section 18(3) concerns
the duties of guardians. Sections 18(4) and 18(5) deal
with the situation where there is more than one
guardian. Section 18 does not limit the persons who may
hold parental rights and responsibilities to a parent or
biological parent.
Health
medical records | disclosure | justified by perceived threat to the safety of
others that was serious and imminent | See private life – Director of Human Rights Proceedings
v Henderson
medical treatment | access | presumption that generic drugs were counterfeit
unjustified | See life – Pao & Ors v Attorney General & Anor
medical treatment | allocation of resources | political question involved |
separation of powers – Centre for Health Human Rights & Development & Ors v Attorney General
See
medical treatment | dignity | replacing night-time carer with incontinence pads
acceptable
R (ON THE APPLICATION OF MCDONALD) V ROYAL BOROUGH OF
KENSINGTON AND CHELSEA
supreme court
lord walker, lady hale, lord brown, lord kerr
and lord dyson
united kingdom
6 jul 2011
M had suffered various health problems leaving her with severely limited mobility. These
were a stroke in 1999, a serious fall in April 2006 resulting in four months hospitalisation and two subsequent falls, each requiring hospital treatment. M also suffered from a
small and neurogenic bladder which required her to urinate two or three times per night.
This had been dealt with by a night-time carer provided by the respondent (‘the RBKC’)
who helped M to use the commode. For some years RBKC had proposed that M instead
use incontinence pads or special sheeting (hereafter referred to as ‘pads’) to meet her
toileting needs. RBKC contended that this would provide greater safety, independence
and privacy, while reducing the cost of M’s care by GBP22,000 per annum. M does not
wish to be treated as incontinent (she is not) and feels that the use of pads would be an
intolerable affront to her dignity. M contended that: (1) the 2009 and 2010 Care Plan
Reviews (‘CPRs’) undertaken by RBKC were not proper reassessments of her care needs;
(2) RBKC’s decision to reduce the sum allocated to M’s weekly care interfered with her
rights under Article 81 of the European Convention on Human Rights (‘the ECHR’) and
that this was not justified or proportionate; (3) RBKC was in breach of its duties under
200
8 CHRLD
health
s 21E(1) of the Disability Discrimination Act 1995 (‘the DDA 1995’)2 constituting discrimination against M; and (4) that RBKC failed to have due regard to the requirements of s
49A of the DDA 1995.3 It was held (Lady Hale dissenting) that RBKC had acted lawfully
and the appeal was dismissed.
RBKC’s decision to reduce the sum allocated to M’s weekly care was initially challenged
by M in 2008 and was heard before the Administrative Court on 5 March 2009 but permission for judicial review (of the decision to reduce the sum for M’s care) was refused.
Permission to apply for judicial review was subsequently granted and the case was heard
in the Court of Appeal on 29 April 2010.
In dismissing the appeal, it was held that:
Per Lords Brown, Walker and Dyson:
(1) Dismissing the assertions by counsel for M that although RBKC was entitled to reassess M’s care needs, the CPRs 2009 and 2010 contained no such reassessment, RBKC
was entitled to take account of its resources when making an assessment of M’s needs
(R v Gloucestershire County Council Ex p Barry [1997] AC 584 followed). Although the
CPRs contained no separate document titled ‘Needs Assessment’, this was not necessary in the circumstances.
(2) The lengths that RBKC went to in order to consult with M are noted, demonstrating
RBKC’s compliance with the Secretary of State’s Directions – the Community Care
Assessment Directions 2004.
(3) M has not established an interference by RBKC with her Article 8 rights. Although
Article 8 imposes a positive obligation on states to provide social care and home-care
(Botta v Italy (1998) 26 EHRR 241; Sentges v The Netherlands (2003) 7 CCLR 400,
405 applied), states do have a wide scope in how to balance the rights of one individual with the needs of the wider community (Pentiacova v Moldova (Application No.
14462/03 (unreported) 4 January 2005 and Molka v Poland (Application No. 56550/00
(unreported) 11 April 2006 considered).
(4) M seeks to rely on R (Bernard) v Enfield London Borough Council [2002] EWHC 2282
(Admin); [2003] HRLR 111; [2003] LGR 423. In that case a disabled mother was doubly
incontinent. The authority did not provide accommodation with wheelchair access to
the lavatory. The result was that the mother had to urinate and defecate on the living
room floor and could take no part in parenting her six children. Bernard had to be
distinguished from this case, however, due to the extremity of that case and the family
unit involved (Anufrijeva v Southwark London Borough Council [2004] QB 1124 applied).
(5) Even if Article 8 had been interfered with, the interference would have been justified
as a proportionate means to afford M the maximum safety, privacy and independence
while also resulting in a substantial cost saving for RBKC.
(6) Counsel for M submits that by replacing a night-time carer with pads, RBKC is in breach
of its obligations under s 21E of the DDA 1995 – specifically, that RBKC is applying a
‘practice, policy or procedure’ that discriminates against M. However, no such ‘practice,
policy or procedure’ exists in this case. RBKC was acting within its statutory duties. Even
if such a policy existed, RBKC’s actions would be justified in the circumstances.
8 CHRLD
201
health
(7) In response to M’s s 49A of the DDA 1995 submissions, there has been no breach
of s 49A. Although, there was no reference to s 49A in RBKC’s documentation surrounding the case, there is no requirement that s 49A be specifically mentioned for
obligations under it to be fulfilled. An omission to mention s 49A does not constitute
a breach (Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR
565 distinguished).
Per Lord Walker (concurring):
RBKC undertook lengthy consideration and consultation with M, and pads are commonly
used as a solution for people in M’s circumstances. While M and many others may disagree with RBKC’s assessment, it cannot be described as irrational.
Per Lord Kerr (concurring):
The CPRs were not intended by RBKC to be reassessments of M’s care needs. However,
despite this, they did in fact contain a reassessment of M’s care needs. To read the CPRs
literally would be to take a far too rigid approach to the issue.
Per Lord Dyson (concurring):
CPRs are documents that are usually drafted by social workers. They should be construed
in a practical way against the factual background in which they are written. In adopting
such an approach, it is clear that although the CPRs did not explicitly purport to be reassessment, that is what they were.
Per Lady Hale (dissenting):
(1) Intervener Age UK submits that RBKC’s decision in this case was ‘irrational in the
classic Wednesbury4 sense’ and the court is allowed to consider arguments not brought
by the parties (Granatino v Radmacher [2010] UKSC 42; [2011] 1 AC 534 considered).
The CPRs clearly categorise M’s needs as requiring help to use the commode and
not incontinence. RBKC has provided a solution to incontinence even when M is not
incontinent. Providing a solution to a problem other than the one at issue is arguably
irrational.
(2) If the majority decision were taken to the logical conclusion, an authority could lawfully withdraw care in much more serious circumstances and a client could be left in
their own excrement until the authority deemed it appropriate to assist. This approach
is unacceptable in a civilised society.
for the appellant: stephen cragg and stephen broach; instructed by disability
law service
for the respondent: kelvin rutledge and sian davies; instructed by royal borough
of kensington and chelsea legal services
for the intervener age uk: ian wise qc; instructed by irwin mitchell llp
[2011] UKSC 33, [2011] PTSR 1266, (2011) 14 CCL Rep 341, [2011] 4 All ER 881, (2011) 121 BMLR 164
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2011/33.html
202
8 CHRLD
health
Editor’s note: This case was appealed to the European Court of Human Rights and
­judgment is expected in May 2014.
pregnancy | mother mortality ratio | failure to adequately implement preven­tive
scheme
SANDESH BANSAL V UNION OF INDIA & ORS
high court of madhya pradesh jabalpur
singh and yadav jj
india
6 feb 2012
A petition was brought against the State of Madhya Pradesh (‘the State’) by social activist
and Member/State Coordinator of Madhya Pradesh Jan Adhikar Manch (‘M’), representing a network of civil society organisations and non-governmental organisations aiming
to raise awareness regarding the high number of mothers who die as a result of childbirth
in the State. M alleged that the State was in breach of its constitutional duties to provide
adequate health care for pregnant women, which in turn breached the constitutional principle of protection of life.
It was submitted by M that around 75,000-150,000 women die every year in India as a
result of giving birth (which was said to be around 20 per cent of the global figure). It was
further argued that the State had the highest maternal mortality rate in the country, with
498 deaths per 100,000 live births. It was contended that there was an imbalance in the
provision of antenatal care for women throughout the country. For instance, a mother
from the richest 20 per cent of the population was 3.6 times more likely to receive antenatal care from a medically trained person compared with a mother from the poorest 20 per
cent. Further, a medically trained person was six times more likely to attend the delivery
of the richer mother than the poorer mother.
During 2005, the Central Government launched a National Rural Health Mission (‘the
Mission’) in response to the high mother mortality ratio and in furtherance of its duty to
improve public health as provided for under Article 475 of the Constitution. The Mission
aimed at providing accessible, affordable and quality health care to the rural population and
reducing the maternal mortality ratio in the country from 407 to 100 per 100,000 live births.
A Programme Implementation Plan 2006-2012 (‘the PIP’) was devised by the State Health
Mission, Department of Health and Family Welfare and the Government of Madhya
Pradesh in order to implement the Mission. The PIP aimed to reduce the State’s mother
mortality rate from 498 to 200 by the year 2010, and identified the following three key
areas for improvement: (1) access to emergency obstetric care; (2) having a skilled attendant at the birth; and (3) an effective referral system.
M contended that there had been a failure in the adequate implementation of the PIP and
therefore the goal of reducing the mother mortality ratio had not been attained. A number
of examples of such inadequate implementation was provided, including the following:
(1) There had been no contribution from the State budget for the PIP during 2007 and
2008 (a contribution of 15 per cent of the budget had been promised to the Mission).
8 CHRLD
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health
(2) In the State there was a shortfall in the target number of health centres required, for
example a shortfall of 1,309 sub-health centres, 487 primary health centres and 66
community health centres
(3) In the health centres that did exist, many operated under unsatisfactory conditions,
including dilapidated and non-existent buildings; poor cleanliness; no proper equipment, rooms or medical supplies; without phones, computers or vehicles; and, in
some cases, without electricity.
(4) There was also a shortfall in the appointment of contractual staff in line with the targets set under the PIP.
(5) During 2005-2008, 21.27 per cent of women in the State did not receive any antenatal
care at all, only 45 per cent received four antenatal check-ups and 55 per cent of the
women were not registered within the first 12 weeks of their pregnancy.
M requested that the State Government be directed so as to take effective steps to reach the
goal of reducing the mother mortality ratio within the target period.
The State respondent admitted that the facilities in the government hospitals were not adequate; however, the State contended that every effort had been made to meet the Mission’s
goals with the economic resources and skilled manpower available.
It was further argued that the mother mortality ratio in the State had reduced to 310 per
100,000 lives in the year 2010 as against 448 per 100,000 in 1997 (this reduction was disputed by M, who argued that the statistics had been inconsistently calculated).
The court reviewed a report based on the availability of staff and facilities in health centres
based in the Gwalior Region of Madhya Pradesh, and judgment was given.
In allowing the petition, it was held that:
(1) The report reviewed by the court revealed conditions that were far worse than depicted
by the State respondent. Buildings were found to be in a dilapidated condition, with
no electricity, and there were water supply issues, staff shortages and centres with
limited opening hours.
(2) The material reviewed showed a shortage of not only infrastructure but the manpower
required for the effective implementation of the Mission which, in turn, was ‘costing
the life [sic] of mothers in the course of mothering’.
(3) A woman being unable to survive pregnancy and childbirth violated her fundamental
right to live as guaranteed under Article 216 of the Constitution.
(4) It is a primary duty of the government to ensure that every woman survives pregnancy
and childbirth and the State is under an obligation to secure mothers’ lives.
(5) The State Government was ordered to follow the recommendations outlined by
the court, which included ensuring proper modern sanitation, an uninterrupted
supply of electricity and water to health centres within the State as well as the vaccination of every pregnant woman and newborn baby for, inter alia, tetanus, BCG
and polio.
(6) Such recommendations were in addition to the goals set out in PIP 2006-2012.
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health
(7) The State was also to ensure the ‘strict and timely implementation’ of the aim of the
Mission to reduce the maternal mortality ratio to 100 per 100,000 live births.
(8) No time period was set for the implementation of the court’s recommendations as the
period had already been set in PIP 2006-2012.
Observations:
The State continued to be one of the worst performers on socio-economic indicators,
with low literacy rates, high levels of morbidity and mortality, and 37 per cent of the
population living below the poverty line. Therefore, it was the State’s duty to see that
the maternal mortality ratio be brought down to the level set out in the Mission. The
State would have to strive hard to implement the Mission in both ‘letter and spirit’ but
the court fully expected the State Government to rise to the occasion and do its best to
achieve the goals.
for the petitioner: shri anubhav jain
for the first respondent: shri mohan sausarkar
for the second respondent (state): shri rahul jain
Writ Petition No. 9061/2008
Full text of judgment available at http://hrln.org/hrln/images/stories/pdf/Sandeshbansal-vs-UOI.pdf
1. Article 8 (Right to respect for private and family life) provides:
‘(1) Everyone has the right to respect for his private and family
life, his home and his correspondence; and (2) There shall
be no interference by a public authority with the exercise
of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.’
2. Section 21E (Duties for purposes of section 21D(2) to make
adjustments) provides: (1) Subsection (2) applies where a
public authority has a practice, policy or procedure which
makes it –‘((a) impossible or unreasonably difficult for
disabled persons to receive any benefit that is or may be
conferred, or (b) unreasonably adverse for disabled persons
to experience being subjected to any detriment to which
a person is or may be subjected by the carrying-out of a
function by the authority.–’
3. Section 49A (General duty) provides: ‘(1) Every public
authority shall in carrying out its functions have due regard
to: (a) the need to eliminate [unlawful discrimination and
victimisation]; (b) the need to eliminate harassment of
disabled persons that is related to their disabilities; (c) the
need to promote equality of opportunity between disabled
persons and other persons; (d) the need to take steps to take
account of disabled persons’ disabilities, even where that
involves treating disabled persons more favourably than other
persons; (e) the need to promote positive attitudes towards
8 CHRLD
disabled persons; and (f) the need to encourage participation
by disabled persons in public life; (2) Subsection (1) is
without prejudice to any obligation of a public authority to
comply with any [provision of the Equality Act 2010 (‘the
2010 Act’), so far as relating to disability]; and (3) In this
section: (a) ‘discrimination’ means disability discrimination
within the meaning of sections 25(2)(a), (b) and (d) of the
2010 Act; (b) ‘disability’ and ‘disabled person’ each have
the same meaning as in section 6 of the 2010 Act; and (c)
‘victimisation’ means victimisation within the meaning of
section 27 of that Act where the protected act in question
relates to disability.’
4. The ‘Wednesbury test’ is the test for unreasonableness
in government decisions found at Associated Provincial
Picture Houses Ltd. v Wednesbury Corporation [1947] 1
KB 223.
5. Article 47 provides: ‘Duty of the State to raise the level
of nutrition and the standard of living and to improve
public health. The State shall regard the raising of the level
of nutrition and the standard of living of its people and
the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.’
6. Article 21 provides: ‘Protection of Life and Personal
Liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law.’
205
housing
Housing
eviction | notice | twenty four hours was too short
SUSAN WAITHERA KARIUKI & ORS V TOWN CLERK, NAIROBI CITY COUNCIL &
ORS
high court
musinga j
kenya
4 mar 2011
K was a resident of a large informal settlement on the outskirts of Nairobi which had
existed for 40 years. Many of the residents were poor and earned their livings as domestic
servants or through petty trade. Planning permission for the erection of the settlement
had never been given. On 29 October 2010, officers of Nairobi City Council (‘the Council’)
served the settlement with notice requiring the residents to vacate within 24 hours. On the
following evening some structures on the site were demolished by an armed group from
the Council, together with the police. Residents who could not vacate were forced to erect
temporary shelters on the same land as no alternate accommodation was provided.
On 1 November 2010, K issued a petition against the forced eviction on behalf of the residents and sought a conservatory order restraining the Council from carrying out any
eviction pending the outcome of that petition. K contended that the forced eviction was
carried out in violation of Articles 28,1 43,2 47(1) and 47(2)3 of the Constitution, which
enshrine the residents’ rights to dignity, adequate housing, sanitation, clean water and
food, their means of livelihood and procedural fairness. Furthermore, there was no basis
for derogation under Article 24.4 The Council contended that the settlement was illegal,
that it respected and upheld the Constitution, and had no mandate to resettle or provide
land for the homeless.
In allowing the petition for the conservatory order, it was held that:
(1) In interpreting the Constitution and Bill of Rights the court should seek to promote
the values that underpin a democratic society, as well as the spirit, objects, values and
principles of those documents. It should also seek to advance the rule of law, human
rights and fundamental freedoms. The rights of the residents therefore supersede the
statutory duties and responsibilities of the Council with respect to the eviction.
(2) Under Articles 2(5) and 2(6)5 of the Constitution, it is appropriate to look to international law to define the right to adequate housing and what is required to discharge it
(United Nations Office of the High Commissioner for Human Rights, ‘The Right to
Adequate Housing’ (Article 11.1) applied).
(3) Accordingly, it is unreasonable and unconstitutional for the residents to be given 24
hours notice to vacate the settlement given the size of the settlement and the length
of time it had existed for. It is also unconstitutional and inhumane to forcefully evict
the residents and demolish the buildings on the settlement after the notice period had
expired.
206
8 CHRLD
housing
(4) The Council is obliged by the Constitution to provide the residents with adequate
alternative accommodation (Modderklip Boerdery v President Van Die RSA en Endere
2003 (6) BC LR 638(T) considered).
(5) The Government is obliged by the Constitution to adopt and implement a reasonable
policy which would ensure access to housing, within a reasonable time and within
its available resources. The Government has no such plan in place (Government of
the Republic of South Africa v Grootboom & Ors 2001 (1) SA 46 CC considered).
for the petitioners: mr ndubi
for the first respondent: mr ogolla
[2011] eKLR, Petition Case No. 66 of 2010
Full text of judgment available at http://kenyalaw.org/Downloads_FreeCases/80847.pdf
eviction | use of force | unjustified after short notice expired | See Susan Waithera Kariuki
& Ors v Town Clerk, Nairobi City Council & Ors
homelessness | inapplicability of programme to persons evicted from private
property unreasonable
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY V BLUE MOONLIGHT
PROPERTIES 39 (PTY) LTD & ANOR
constitutional court
moseneke dcj, van der westhuizen, cameron,
froneman, jafta, khampepe, mogoeng, nkabinde,
skweyiya and yacoob jj
south africa
1 dec 2011
B purchased an old and dilapidated commercial property, which was known to be occupied in 2004. The property held 86 people (‘the occupiers’) of differing ages, income and
health. All of the occupiers had been residents at the property for longer than six months,
and several had been residents for many years. The occupiers had been living in the property legally until 2004. B sought to redevelop the property and served two separate eviction
notices before commencing eviction proceedings under the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act (‘the PIE’).
The occupiers opposed the eviction on the basis that they would be made homeless, and
they applied successfully to join the City to the proceedings because of its constitutional
and statutory duties in relation to housing. The High Court ordered the eviction of the
occupiers. The High Court found the City’s housing policy unconstitutional to the extent
that it discriminated against those in desperate need of housing who are subject to eviction
by private landowners ordered the City to remedy this defect and to provide the occupiers
with temporary accommodation.
8 CHRLD
207
housing
The City appealed the decision to provide temporary housing before the Supreme
Court of Appeal which upheld the eviction order and declared the City’s housing policy unconstitutional as it excluded the occupiers from being considered for temporary
accommodation. The City was ordered to provide the occupiers with temporary emergency accommodation. The City had been granted leave to appeal against the finding of
its housing policy as unconstitutional and being ordered to provide accommodation to
the occupiers. The occupiers cross-appealed for conditional leave, seeking that any order
of eviction from B be linked to the provision of suitable alternative emergency temporary
accommodation by the City. B filed a notice to abide, making submissions on its rights
relating to the property.
In dismissing the appeal and finding that the City’s housing policy unconstitutional, it
was held that:
(1) The protection against arbitrary deprivation of property in s 25 of the Constitution
must be balanced against the right to access to adequate housing and the right not to
be evicted arbitrarily from one’s home in s 26 of the Constitution.
(2) Unlawful occupation does result in a deprivation of property under s 25(1) of the
Constitution, but the provisions of the PIE only allow for eviction when it is considered just and equitable. Therefore the courts must consider an open list of what
is just and equitable.6 The relevant factors in this case were that: (a) the occupiers
had been in occupation for more than six months; (b) some occupiers had occupied
the property for a long time; (c) the occupation was once lawful; (d) B knew of the
occupiers when it purchased the property; and (e) the occupiers risk homelessness
while there is no risk that B will be made homeless if it is unable to re-claim the
property.
(3) Chapter 12 of the Housing Code 2009 must be read in conjunction with s 9 of the
Housing Act 1997 which requires municipalities to take all reasonable steps to ensure
access to housing. Further, ss 4(1) and 8(2) of the Municipal Systems Act 2000 enable financial and institutional autonomy, while s 4(2)(j) requires them to contribute
together to realise the ‘fundamental rights contained in ss 25, 26, 27, and 29 of the
Constitution’. Therefore, the City is entitled and obliged to fund any necessary accommodation, especially in the context of emergency situations.
(4) Chapter 12 of the Housing Code 2009 includes no indication that local government’s capacity to provide emergency accommodation is dependant solely on
funding by provincial government. Emergencies cannot be dealt with on an ad
hoc basis alone; emergency occurrences are to some extent foreseeable, so the City
ought to plan proactively and budget for emergency situations in its yearly applications for funds.
(5) The court would not order the City to assist the occupiers if that was impossible to
achieve as a result of its lack of resources. The City had three years of prior knowledge of the occupiers’ circumstances and this led the court to find that, to a great
extent, the City had itself to blame for its unpreparedness to deal with the occupiers’
plight. Finally, it is not good enough for the City to state that it has not budgeted for
something it should have planned for in the fulfilment of its obligations. The City
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8 CHRLD
housing
failed to prove to the court that it did not have the resources to meet the needs of the
occupiers.
(6)In Government of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19; 2001 (1) SA 46 (CC) it was held that a reasonable housing programme cannot disregard those who are most in need. Affected individuals may
include children, elderly people, people with disabilities or single parent households. The policy does not meaningfully and reasonably allow for the needs of
those affected to be taken into account. The City’s housing policy differentiates
between those evicted by the City, who are eligible for temporary accommodation,
and those evicted from private property, who are not. The court found this policy
unconstitutional as the occupiers’ exclusion from temporary accommodation was
found to be unreasonable. The court stated that the eviction of the occupiers would
only be just and equitable if the date of the eviction was linked to a date on which
the City was required to provide accommodation. The City is therefore obliged to
provide temporary housing relief for emergency situations on a date linked to the
date of eviction.
for the applicant: j j gauntlett sc and f b pelser; instructed by moodie &
robertson
for the first respondent: m s m brassey sc and g a fourie; instructed by schindlers attorneys
for the second respondent: p kennedy sc, h barnes and s wilson; instructed by
wits law clinic
for the amicus curiae: a gabriel sc and b s m bedderson; instructed by lawyers
for human rights
[2011] ZACC 33, 2012 (2) BCLR 150 (CC,; 2012 (2) SA 104 (CC)
Full text of judgment available at http://www.saflii.org/za/cases/ZACC/2011/33.html
1. Article 28 provides: ‘Every person has inherent dignity and
the right to have that dignity respected and protected.’
2. Article 43 provides: ‘(1) Every person has the right: (a) to
the highest attainable standard of health, which includes
the right to health care services, including reproductive
health care; (b) to accessible and adequate housing, and
to reasonable standards of sanitation; (c) to be free from
hunger, and to have adequate food of acceptable quality; (d)
to clean and safe water in adequate quantities; (e) to social
security; and (f) to education. (2) A person shall not be denied
emergency medical treatment. (3) The State shall provide
appropriate social security to persons who are unable to
support themselves and their dependants.’
3. Article 47 provides: ‘(1) Every person has the right to
administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair. (2) If a right or fundamental
freedom of a person has been or is likely to be adversely
affected by administrative action, the person has the right to
be given written reasons for the action.’
8 CHRLD
4. Article 24 provides: ‘(1) A right or fundamental freedom
in the Bill of Rights shall not be limited except by law, and
then only to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account
all relevant factors, including: (a) the nature of the right or
fundamental freedom; (b) the importance of the purpose
of the limitation; (c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and
fundamental freedoms by any individual does not prejudice
the rights and fundamental freedoms of others; and (e) the
relation between the limitation and its purpose and whether
there are less restrictive means to achieve the purpose.’
5. Article 2 provides: ‘… (5) The general rules of international
law shall form part of the law of Kenya. (6) Any treaty or
convention ratified by Kenya shall form part of the law of
Kenya under this Constitution.’
6. See ss 4(6) and 4(7) of the PIE.
209
information
Information
official records | disclosure | exemptions | ministerial offices covered
CANADA (INFORMATION COMMISSIONER) V CANADA (MINISTER OF
NATIONAL DEFENCE)
supreme court
mclachlin cj, binnie, lebel, deschamps, fish, abella, charron, rothstein and cromwell jj
canada
13 may 2011
This case was an appeal to the Supreme Court by the Information Commissioner of
Canada (‘the ICC’) following the unsuccessful appeals to the Federal Court of Appeal
(‘the FCA’) with respect to four applications made by the ICC for judicial review of refusals to disclose certain records requested almost a decade ago under s 4 of the Access to
Information Act 1985 (‘the AIA’), which grants right of access to ‘any record under the
control of a government institution’. The first three applications concerned refusals to
disclose records located within the offices of the Prime Minister, the Minister of National
Defence and the Minister of Transport (together, ‘the Government’) respectively. The
fourth application concerned the refusal to disclose those parts of the Prime Minister’s
agenda in the possession of the Royal Canadian Mounted Police (‘the RCMP’) and the
Privy Council Office (‘the PCO’). The Federal Court of Canada (‘the FCC’) refused disclosure on the first three applications, holding that the meaning of ‘government institution’
under the AIA did not include ministerial entities and the records requested were not
under the ‘control’ of a government institution, but ordered it on the fourth application,
holding that the Government was not entitled to make use of the ‘personal information’
exception to s 4 of the AIA under s 19(1) of the AIA. The FCA affirmed the FCC’s judgment with respect to the first three applications, but reversed it with respect to the fourth
application.
In dismissing the appeal, it was held that:
Per Charron J (McLachlin CJ and Binnie, Deschamps, Fish, Abella, Rothstein and
Cromwell JJ concurring):
(1) On the first three applications, the question hinges on (a) whether the relevant ministerial offices fell within the meaning of ‘government institution’ and (b) whether the
records requested were under the ‘control’ of a government institution in accordance
with s 4 of the AIA.
(2) On the meaning of ‘government institution’, the question hinges on whether a
ministerial office should be taken as implicitly falling under the meaning of ‘government institution’ notwithstanding its express exclusion from the list of specified
entities under Schedule 1 of the AIA and in accordance with the relevant definition
of the term under s 3 of the AIA. The FCC’s conclusion, as affirmed by the FCA,
was that Parliament had not intended to implicitly include ministerial offices within the AIA.
210
8 CHRLD
information
(3) However, the ICC submits that the FCC erroneously made use of expert evidence and
the FCA erroneously accorded ‘constitutional weight’ in its interpretation of ‘government institution’.
(4) The ICC submits that a function-based analysis should be adopted instead, distinguishing between a minister’s departmental functions and non-departmental
functions. Accordingly, as heads presiding over departments, the Government should
be considered part of these ‘government institutions’ within the meaning of the IAI,
when exercising departmental functions.
(5) The Court finds that the FCC’s use of expert evidence was merely supportive and there is
no evidence that the FCA was referring to constitutional conventions in the legal sense.
(6) Crucially, in advocating the function-based approach, the ICC fails to make any direct
reference to the legislative provision at issue.
(7) The Court cannot disregard the actual words chosen by Parliament and rewrite the
legislation to accord with its own view of how the legislative purpose could be better
promoted. As Kelen J noted in his FCC judgment, ‘The question for the Court is not
whether the documents should be accessible to the public but whether the documents
are currently accessible to the public under Canada’s existing law. The Court does not
legislate or change the law; it interprets the existing law’.
(8) It is important to recall that Parliament’s statement of purpose in s 2 of the AIA
recognises that exceptions to public accessibility are ‘necessary’. Similarly, the policy
rationale for excluding a minister’s office altogether from the definition of ‘government institution’ can be found in the need for a private space to allow for the full and
frank discussion of issues.
(8) On the meaning of ‘control’, which is not defined under the AIA, the ICC submits
that the FCA’s affirmation of the FCC’s proposed two-step ‘control test’ could potentially become a ‘black hole’ used by ministers to shield certain sensitive documents
that properly fall within the scope of the AIA. The control test asks: (a) whether the
contents of the document relate to a departmental matter; and (b) whether the government institution could reasonably expect to obtain a copy of the document upon
request. If both questions are answered in the affirmative, the document is under the
control of the government institution.
(9) However, the Court is not persuaded by the ICC’s black-hole argument and holds that
the control test is well crafted to answer the concern.
(10) The ICC’s submission as to the interpretation of ‘control’ again lies on a function-based
approach and which the Court also rejects, the reason being that if the function or
content of the record determines control, this would effectively eliminate the need to
consider the definition of ‘government institution’ and would have the effect of extending the reach of the AIA into a minister’s office where Parliament has chosen not to go.
(11) On the fourth application, the parties agree that the relevant records requested fall
within the meaning of ‘personal information’ under s 19(1) of the AIA, which prohibits
disclosure of any personal information as defined in s 3 of the Privacy Act 1985 (‘the
PA’). Instead, the question hinges on whether s 3(j) of the PA creates an exception
8 CHRLD
211
information
by excluding from the scope of protection such information which pertains to ‘an
individual who is or was an officer or employee of a government institution’ and the
information ‘relates to the position or functions of the individual’.
(12) In particular, the question hinges on the meaning of the undefined term ‘officer’, i.e.
whether the Prime Minister as head of a government institution is also an ‘officer’ of
the institution and therefore in scope of the exception under s 3(j) of the PA.
(13) The FCA was right to reverse the FCC decision, which erred in law in importing into
the Privacy Act the definitions of ‘public officer’ from statutes dealing with different
subjects that use that term in different contexts.
(14)Again, the ICC’s position is to propose a function-based approach in the interpretation of ‘officer’.
(15) However, the ICC’s position is problematic; there is nothing in either the AIA or PA
suggesting that a person might be an officer for some purposes and not for others,
or that a minister is intended to be an officer of the government institution simply
because he is the head of that institution.
(16)Finally, as this Court explained in Dagg v Canada (Minister of Finance), [1997] 2 S.C.R
403 and reiterated in Canada (Information Commissioner) v Canada (Commissioner of
the Royal Canadian Mounted Police), 2003 SCC 8 [2003] 1 S.C.R. 66, the AIA and PA
are to be read together as a seamless code. However, the FCC and ICC interpretation
of ‘officer’ would create a situation where under the AIA, a minister or Prime Minister
would not be part of a government institution, while under the PA, he would be considered an ‘officer’ of the government institution.
(17) Accordingly, the Court agrees with the FCA. Had Parliament intended the Prime Minister
to be treated as an ‘officer’ of the PCO pursuant to the PA, it would have said so expressly.
(18)As this Court recently stated, ‘[a]ccess to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and
enhance an open and democratic society. Some information in the hands of those
institutions is, however, entitled to protection in order to prevent the impairment
of those very principles and promote good governance’ (Ontario (Public Safety and
Security) v Criminal Lawyers’ Association, 2010 SCC 23 [2010] 1. S.C.R. 815 applied).
(19)The interpretation advanced by the ICC on the meaning of ‘government institution’,
‘control’ and ‘officer’ cannot be sustained under the existing statutes at issue. The
Court therefore dismisses all four appeals.
Per LeBel J (concurring):
(1) The conclusion that a minister’s office is not a ‘government institution’ for the purposes of the AIA cannot be the basis for an implied presumption that the public does
not have a right of access to records in a minister’s office.
(2) If the AIA does not specifically exempt political records, the right of access is presumed to apply to them.
(3) Similarly, the need for a full and frank discussion does not justify excluding ministers’ offices from the scope of the AIA. To read such a broad exemption into the AIA
212
8 CHRLD
information
is not ‘necessary’ within the meaning of s 2 of the AIA, because the concern is already
addressed under the s 21 exception for confidential advice.
(4) Kelen J’s views on statutory interpretation in his FCC judgment, from which Charron
J’s conclusions draws support, are disputed. On the basis of Parliament’s silence
regarding political records, Kelen J reasoned that an interpretation of the term ‘government institution’ that included ministers’ offices would illegitimately extend the
right of access. However, this Court’s approach to statutory interpretation has been
that access to information legislation creates a general right of access to which there
are necessary exceptions that must be limited and specific. If the legislature is silent
with respect to a given class of documents, such as political records, courts must
assume, prima facie at least, that the documents in question are not exempt.
(5) The presumption that the AIA applies to ministers’ offices does not expand the right
of access at all. Any requested record that is located in a minister’s office is subject to
the two-part control test proposed by Charron J above.
(6) The presumption that a minister’s records are beyond the scope of the AIA would
also significantly weaken the ICC’s powers of investigation, which are crucial to the
intended balance between access to information and good governance.
(7) In the circumstances in which the records at issue in the first three applications were
created and managed, a government institution would not have a reasonable expectation of obtaining them. These documents were therefore not under the control of a
government institution. As for the records in the possession of the RCMP and PCO,
even though they were under the control of a government institution, the heads of
those institutions had an obligation to refuse to disclose them.
for the appellant: j r orkin, m a edwardh, l kearley and d therrien; instructed by
the information commissioner of canada, ottawa
for the respondents: c rupar, j g johnston and m moore; instructed by the attorney general of canada, ottawa
for the interveners: p schabas; instructed by blake, cassels & graydon, toronto
2011 SCC 25, [2011] 2 SCR 306
Full text of judgment available at http://www.canlii.org/en/ca/scc/doc/2011/2011scc25/
2011scc25.html
official records | disclosure | exemptions | personal information | inapplicable to
position or function of government employee | See Canada (Information Commissioner) v Canada
(Minister of National Defence)
personal communications data | insufficient protection in service provider’s
licence | See private life – Kimu v Access Malawi Limited & Ors
8 CHRLD
213
liberty
&
security
Liberty & security
detention | arrest | unlawful | damages payable
RAZACK MOHAMMED V ATTORNEY GENERAL & ANOR
high court
alexander j
trinidad & tobago
9 may 2012
R, the claimant, was approached by a friend, N, who had been working as a police informant for the previous six years. N sought the assistance of R to work alongside the police in
a ‘sting operation’ aimed at securing the arrest of two suspected drug dealers, A and K, in
exchange for a payment of TT$4,000 for undergoing this operation.
However, upon the execution of the pre-arranged plan, the claimant was arrested with A
and K on 25 August 1998 and charged with the possession of dangerous drugs, namely
cocaine, for the purpose of trafficking.
After being arrested, he was refused bail by a magistrate, remanded in custody, ordered to
surrender his Trinidad & Tobago passport and prohibited from leaving the jurisdiction without permission from the court, and to report to the San Juan police station twice per week. He
remained in the custody of the State for approximately eight weeks, until 11 April 2008, when
it was confirmed that no evidence would be tendered against him and he was discharged.
The claimant alleges that during his arrest he was pushed roughly, spoken to abusively and
was threatened at gunpoint. The arrest and subsequent search of his property took place in
full public view and, among others, was witnessed by his wife, children and neighbours,
all of which caused him extreme embarrassment and emotional trauma and ultimately
led to loss of reputation and impacted greatly on his marriage, social life and standing in
the community. The claimant further gave evidence that during the unlawful detention he
was made to endure inhumane conditions, assaults and homosexual advances.
The High Court of Justice assessed the claimant’s damages for assault, false imprisonment, malicious prosecution and to determine his entitlement to aggravated and
exemplary damages.
In upholding the claim for damages for assault, false imprisonment and malicious prosecution, and determining his entitlement to aggravated and exemplary damages, it was
held that:
(1) In terms of the assault, the evidence of the claimant is accepted that on arrest he
was roughly handled, in the full glare of people in a popular local mall. Further, it
is accepted that the claimant would also have suffered injury to feelings and dignity.
Therefore, he is entitled to fair compensation, despite there being no evidence of actual physical injury.
(2) In terms of false imprisonment, the period of false imprisonment lapsed at the judicial act when the claimant was brought to court for his bail hearing and therefore
214
8 CHRLD
liberty
&
security
amounted to 15 hours only. The claimant has suffered both of the two basic elements of ‘injury to liberty’ and ‘injury to feelings’ required to be proven for a claim
of damages for false imprisonment (Walter v Alltools (1944) 61 TLR 39, 40 (CA)
applied).
(3) Damages for the malicious prosecution for possession of dangerous drugs should be
awarded for injury to reputation; injury where a person is in danger of losing his life
or liberty; and for money spent in defending the charges. Since the claimant’s arrest
for a serious charge was highly publicised, and he was only acquitted ten years after
the charge was made against him, the claimant has suffered injury to his reputation
and now must live with that stigma for the rest of his life.
(4) In respect of damages, this is an appropriate case to award aggravated damages
(Thompson v Commissioner of Police of the Metropolis [1998] QB 498 applied) as an
uplift on the normal damages because of the extraordinary damage suffered.
(5) Furthermore, an award of exemplary damages would also be appropriate because
of the oppressive, arbitrary and unconstitutional conduct by the second defendant
(Rookes v Barnard [1964] UKHL 1 applied).
(6) In applying the case of Mario’s Pizzeria Ltd v Hardeo Ramjit [2003] CA 146, special
damages ‘must be claimed specially and proven strictly’. Claims for special damages
for costs of legal representation and obtaining the return of the passport are permitted. However, the claim for loss of earnings and the cost of the bail application, which
cannot be substantiated in evidence, is denied.
for the claimant: mr ryan cameron
for the defendants: mr sarfraz alsaran
Claim No. CV2009-02792
Full text of judgment: http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/
masalexander/2009/cv_09_02792DD09may2012.pdf
detention | custodial violence | assault | excessive force used by officers
NNAMDI V ATTORNEY GENERAL
supreme court
slicer j
samoa
3 sep 2011
On 3 July 2009 N, a Nigerian national, obtained USD10,000 from the Samoa Foreign
Exchange. Before he repaid the money, N flew to American Samoa.
On 26 August 2009 N was escorted back to Western Samoa by police and charged
with theft and false pretence. N was subsequently released on bail pending trial and, as
8 CHRLD
215
liberty
&
security
a condition of his bail, his Nigerian passport and moneys were held by the police. The
charges against N were later dismissed at trial on 18 March 2010.
Following his acquittal, the court ordered the return of N’s passport and money. Nothing
was ever returned and it appeared that the property had either been lost or stolen while in
police custody. N was unable to leave the country without his passport and arrangements
were made by the Prime Ministers’ office for N to travel to Malaysia on 4 December 2011 to
obtain a new Nigerian passport from the Nigerian embassy to facilitate his return travel to
Nigeria. However, on 2 December 2011 N was declared a prohibited immigrant pursuant
to s 29 of the Immigration Act 2004 and became subject to a deportation order.1 N was
due to be deported on 13 January 2011 but he failed to attend the airport, claiming he had
not been advised by police of the deportation and that, in any event, the dispute regarding
his lost property had not been resolved.
On 14 January 2011 N was taken into police custody. Before being transferred to prison,
he claimed he was repeatedly assaulted by a police officer, resulting in injury to his eye.
While in custody he claimed that he was not permitted to make any phone calls, receive
any visitors or talk to any other prisoners, and that he was refused medical treatment for
his injuries. On 19 January 2011 N was returned to the police station and was told that he
would be deported that evening. N alleged that he was beaten by a number of police officers, stripped of his own clothes and forced into clothes issued by the officers, and that he
was then handcuffed with his hands behind his back, his legs bound, mouth taped and
forced into the back of a police vehicle to be driven to the airport.
At the airport, the airport manager observed N’s condition and advised officers that N was
not fit to travel. The captain of the aircraft also refused N carriage. Following the refusal
to allow N to board the plane he was subsequently detained in prison where he claimed
he was subjected to further inhumane treatment as he was not allowed to exercise, only
given a minimal food supply, not given a bed to sleep on and received inadequate medical
treatment for the conditions he had developed while in detention. N remained in prison
until his court-ordered release on 6 June 2011. During his time in detention no efforts were
made to renew his transfer out of the country or for his conditional release.
N sought damages against the Attorney General on behalf of the Government of Samoa,
alleging the torts of assault and false imprisonment, negligence or indifference to duty
and breach of care to the person, and negligence in the custody of property or breach of
bailment, relying on Articles 4,2 63 and 74 of the Constitution.
In allowing the claim, it was held that:
(1) The court will not question the right of the Government of Samoa to deport persons
it considers to be unwelcome and harmful to its citizens or its community. The issues
for the court to decide in this case are the allegations of unlawful and inhumane conduct and avoidance of responsibility by police officers.
(2) The torts of assault and false imprisonment require the same standard of proof as that
of criminal offences in civil proceedings (Phipson on Evidence, 14th edition, 4.39) with
the onus of proof being on the plaintiff (Hornell v Newberger Products Ltd [1957] 1 QB
247; Bringshaw v Bringshaw [1938] HCA 34). The court is satisfied with N’s evidence
and that of the witnesses who have corroborated his evidence with respect to his
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treatment by police officers in January 2011, and concludes that the police used excessive force and assaulted N on these occasions.
(3) N was continually detained, through inaction, for a period of more than eight weeks,
which, while the initial detention may have been lawful, is of a nature and length which
renders the detention unlawful or the exercise of an unreasonable amount of discretion.
While the deportation order was exercised lawfully, it does not provide immunity for
the State where it acts outside the purpose for which the deportation order was issued
(Baigent’s case [1994] 3 NZLR 667). An authority may unlawfully abdicate its statutory
function by failing to act or by purposeful inaction (Padfield v Minister of Agriculture,
Fisheries and Food (1968) AC 997 and R v Secretary of State for the Home Department [1995]
2 AC 513). In this case the failure of officers to bring N back to court (Whihair v Attorney
General [1966] 2 NZLR 24) or to make any attempt to address the claims made by his lawyer, or to take any steps to resolve his lost property claim and either permit his conditional
release or offer prompt redress of his claim, is in breach of Article 6 of the Constitution.
(4) Article 14 of the Constitution guarantees the return of property upon discharge from
the legal process.5 The police also have a duty of care to persons in their custody, which
extends to that person’s property (Vellino v Chief Constable of Greater Manchester [2001]
EWCA 1249), even in circumstances where that person has committed a criminal act
(National Coal Board v England [1954] AC 403). In addition, the wrongful detention of
property may be established by proof that the plaintiff demanded return of the goods
and that the defendant failed to do so (Rushworth v Taylor (1842) 3 QB 699).
(5) The test, as stated in Vellino (supra), to determine whether N was entitled to refuse to
leave the country without the return of his property is ‘whether the plaintiff’s illegal
conduct is of such moral turpitude as to require recovery to be denied on the grounds
of public policy’. In this case N was entitled to pursue his claim for return of his property through the court process, but was denied the opportunity to do so. Moreover, the
police failed in their duty of care to properly investigate and resolve N’s complaint.
for the plaintiff: t s toailoa
for the defendant: m lui and a ah leong-oldehaver
[2011] WSSC 91
Full text of judgment available at http://www.paclii.org/ws/cases/WSSC/2011/91.html
detention | delay in release | systematic failure | substantial damages required
WENDELL BECKLES V ATTORNEY GENERAL OF TRINIDAD AND TOBAGO &
ANOR
high court
gobin j
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trinidad & tobago
22 may 2012
217
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The case against B was dismissed at trial, but he was returned to prison. B told the prison
officers that he had been discharged by the magistrate and asked on several occasions
when he was next due to return to court. His assertion was not checked. B remained
incarcerated on remand for eight years in squalid conditions until an application for a
writ of habeas corpus was filed on his behalf. The State neglected to put in a defence to B’s
subsequent claim for damages for false imprisonment. Judgment in default was entered.
In awarding the sum of TT$2,100,000 to B, it was held that:
(1) No amount of money can compensate B for the wrong he suffered. Any decision on
B’s case would be highly fact-specific. Consideration of cases of constitutional relief or
unlawful imprisonment would give rise to wholly inappropriate considerations.
(2) The damages recoverable shall be limited to the four-year period allowed under the
Statute of Limitations. Although B cannot be compensated for the first four years of
his unlawful imprisonment, it was permissible to take into account his physical and
mental damage resulting from this period and thus his condition at the start of the
second four year period.
(3) The approach where the quantum of damages for each week or month is reduced
the longer the overall period of unlawful detention is rejected. In fact the longer the
period of B’s wrongful detention, the more damages B is entitled to as the longer the
period is the more dehumanising his condition became.
(4) A purely compensatory award is not sufficient. It is essential to include an element of
punitive and exemplary damages so as to deter future systematic failures. The absence
of malice on the part of the State does not affect this determination. Elements of
compensation for loss of liberty, loss of dignity, injury to feelings, punitive damages,
aggravated damages and interest shall also be included.
(5) B’s unlawful detention resulted from a systematic failure or institutional inefficiency
similar to the case of Perry Matthew v The AG [2004] HCA 3342. B’s substantial damages will send a message to the authorities that such a failure will be treated seriously.
for the claimant: mr t davis; holding for mr m seepersad
for the defendants: ms panchu; holding for mr d byam
CV2009-03303
Full text of judgment available at http://webopac.ttlawcourts.org/LibraryJud/Judgments/
HC/gobin/2009/cv_09_03303DD22may2012.pdf
detention | disappearance | proper investigation and prosecution required
PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION V FEDERATION OF
PAKISTAN & ORS
218
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liberty
supreme court
chaudhry hcj, hussain and parvez jj
&
security
pakistan
17 apr 2012
Regional paramilitary units and the police were involved in the unlawful abduction and
imprisonment of individuals in Balochistan. The influence of multiple factions within
the Balochistan region has led to a disruption in the provision of law and order, and the
breach of constitutional rights that guarantee the protection of life and property. Reference
to many instances of kidnapping, including S, who has been missing since 2003 with his
last known whereabouts recorded on 6 June 2009, NA, AL and AHR were abducted on 3
April 2012, and 30 other people were abducted and their property set on fire in February
2012 (with 16 of those still unaccounted for). Where there have been investigations, the
police have made little progress in identifying the culprits and have not identified any of
those responsible for the targeted sectarian killings of 265 people between 2008 and 2012.
The role of the Federal Government was also called into question in relation to upholding
order within the region.
In upholding the order of constitutional breach to life and liberty, it was held that:
(1) The constitutional right to prevent the deprivation of liberty save in accordance with
the law under Article 96 of the Constitution must be preserved.
(2) It remains the prima facie duty of the police and Balochistan Levies (regional paramilitary unit) to provide protection to the life and security of citizens.
(3) Any individual found to be involved in any offence should be charged on the basis of
relevant evidence rather than be subject to illegal detention by any agency.
(4) The names of agencies and persons curtailing the liberty of individuals without legal
justification should be disclosed to the court.
(5) For those suspected of illegal detention, the procedure should be as follows: the
Pakistan Human Rights Commission will refer missing persons’ details to the
President of Balochistan High Court Bar Association. The names will then be collated
and referred to the Inspector General of Police and the Home Secretary, Balochistan
for them to trace.
(6) Although local government has an essential role as enshrined in Articles 327 and
140A8 of the Constitution, the Federal Government has a responsibility to assist in the
maintenance of law and order as laid out in Articles 9, 14, 15, 18 and 24 (Watan Party
v Federation of Pakistan PLD 2011 Supreme Court 997 followed).9
(7) Recommendations regarding the steps necessary to enforce the constitutional provisions and to protect the citizens of Balochistan are to be referred to the Prime Minister
through the Principal Secretary, Secretary Establishment, Secretary Interior, Secretary
Defence, the Governor, and the Chief Minister/Chief Executive, Government of
Balochistan.
(8) The case was adjourned to allow the Chief Secretaries of all the provinces to consult
their respective governments and present schedules for holding local government
elections under Articles 32 and 140A of the Constitution.
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Observations
(1) As per the cases of NA, AL and AHR, recorded statements should be taken by the
police under s 161 of the Code of Criminal Procedure, thus providing procedural
credibility in ensuring the preservation of life and security.
(2) When witness statements are contradictory, and one of the statements is from
a member of Parliament, it is preferable to favour his or her word because of the
responsibility placed on them by Article 63(1)(g)10 of the Constitution.
(3) The Attorney-General’s lack of attendance at the hearing is admonished as disrespectful of the authority of the court.
for the petitioners: syed ayaz zahoor, hadi shakeel ahmed, kamran murtaza, syed
qair shah and malik zahoor shahwani; instructed by president balochistan high
court bar
for the complainants: nasrullah baloch (instructed by voice for baloch missing
persons), sumaira baloch, azam khan and rukhsana baloch
on court notice: malik sikandar khan, maulvi anwarul haq and shafi m chandio
for govt of balochistan: amanullah kanrani, naseebullah bazai, rao amin hashim,
ahsan mahboob, hamid shakeel, qazi abdul wahid, noshed younis, fared barech,
fayaz bhatti, muhammad tariq, noor muhammad, zafar iqbal, babar yaqoob fateh
muhammad, wazir hussain, mansab khan, muhammad ramzan, mir jan, amir khan
and gul mir
for frontier corp: major general obaidullah
for sindh police: mushtaq mahr and naeem sheikh
for kpk government: asadullah chamkani, syed arshad hussain shah and ghulam
dastgir
for punjab government: mudassar khalid abbasi, khizar hayat gondal and sikandar
suleman raja
for sindh government: abdul fateh malik, qasim mirjat, raja m. abbas, syed mushtaq
ahmed shah, mushtaq mahr, aftab nasir, zameer ahmed abbasi and muhammad
mubeen
for ministry of defence: commander hussain shahbaz
CMA No. 178-Q of 2012 in Const. Petition No. 77 of 2010
Full texts of judgments available at http://www.supremecourt.gov.pk/web/user_files/File/
Const.P.77of2010-DT-06-04-2012.pdf, http://www.supremecourt.gov.pk/web/user_files/
File/ConstitutionPetitionNo.77of2010-dt-12-04-2012.pdf and http://www.supremecourt.
gov.pk/web/user_files/File/ConstitutionPetitionNo.77of2010-dt-17-04-2012.pdf
detention | employment of children in circuses | duty to liberate | See children –
Bachpan Bachao Andolan v Union of India & Ors
220
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detention | interval between arrest and first court appearance | maximum author­
ised should not be automatically applied
MASHILO & ANOR V PRINSLOO
supreme court of appeal
mpati p, navsa, nugent, tshiqi and theron jja
south africa
28 sep 2012
P was arrested on suspicion of murder by M, a police detective, at approximately 16:30 on
18 November 2009. On 19 November 2009, P’s attorney, K, went to the police station and
requested that P be brought to court as soon as reasonably possible so that an application
for bail could be made before the courts closed for the weekend. M refused, stating that he
was busy and that he was entitled to detain P for 48 hours before bringing him to court.
The period of 48 hours was due to expire at 16:30 on 20 November 2009. As the expiry of
the 48-hour period was outside of ordinary court hours, M said that he would bring P to a
court on the morning of 23 November 2009.
Following his exchange with M, K decided to approach the High Court and his application
came before Du Plessis AJ in chambers on 19 November 2009. The court made an order
directing the National Prosecuting Authority (‘the NPA’) and M to take P to the Pretoria
North Magistrates’ Court on or before 14:00 on 20 November 2009, failing which he
would be entitled to again approach the court on the same papers, for appropriate relief.
M was further ordered, in the event of his failure to comply with the court order, to appear
before the High Court on 20 November 2009, to show good cause why a costs order
should not be made against him personally.
P was taken to the court as per the order but the application for bail was not heard
because, so M alleged, the magistrate who had been approached to preside over it had
taken the confession that originally implicated P’s involvement in the murder and led to
P’s arrest.
The application resumed before the High Court on the afternoon of 20 November 2009.
K informed the court that there had been non-compliance with its earlier order and
therefore persisted with an application for P’s release. He also informed the court that
he had abandoned the prayer for costs against M and would, instead, seek a costs order
against the NPA as the application was now in effect against the NPA. At this stage counsel for M, the station commander at M’s police station, and the Minister of Safety and
Security were all absent. They had earlier asked K to ask the court to excuse them as they
thought their presence was no longer necessary. K accordingly conveyed their request to
the court.
The High Court granted an order effectively releasing P on certain conditions, including an order to appear before the magistrates’ court on 23 November 2009 for a bail
hearing. The court further granted a costs order on 11 October 2010 against M in his personal capacity and a later application to appeal this order was refused. On 1 December
2011 the application for leave to appeal was granted by the Supreme Court of Appeal of
South Africa.
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In upholding the appeal, it was held that:
Per Tshiqi JA (Mpati P, Navsa, Nugent and Theron JJA concurring):
(1) The costs order against M be set aside as P’s counsel had previously abandoned his
prayer for costs against M.
(2) What was sought to be achieved by appealing the order to release P was to outline a definite interpretation of ss 50(1)11 and 50(6)12 of the Criminal Procedure Act 1977 (‘the CPA’).
(3) Under ss 50(1)(a) and 50(1)(b) of the CPA, an arrested person has to be brought to a
police station as soon as possible after the arrest and is required to be informed of
their right to institute bail proceedings as soon as reasonably possible.
(4) Section 50(1)(c)(ii) of the CPA requires that an arrested person be brought before a
lower court as soon as reasonably possible, but not later than 48 hours after the arrest.
(5) Section 50(1)(d)(i) of the CPA states that if the 48 hours expires outside of court hours,
or on a day which is not an ordinary court day, the accused shall be brought before a
lower court not later the end of the first court day.
(6) Section 50(2) of the CPA defines a court day as a day on which the court in question
normally sits and states that ‘ordinary court day’ has a corresponding meaning. Under
s 50(2) of the CPA, if the 48 hours expires on day which is not a court day or any court
day after 16:00, the 48-hour period is deemed to expire at 16:00 on the next succeeding court day.
(7) Section 50(1)(d)(i) of the CPA was clearly intended to extend the 48-hour outer limit
during which an arrested person could be detained.
(8) However, the outer limit of 48 hours envisaged in s 50(1)(d)(i) of the CPA does not
entitle a police officer to detain someone for the entire period without bringing him
to court if it could be done earlier as s 50(1)(c)(ii) of the CPA obliges police to bring
someone before court as soon as is reasonably possible.
(9) Deliberately obstructive behaviour, as was evidenced by M, is not tolerated. On the
basis of such behaviour alone, the court could quite easily have ordered that P be
brought to court immediately to facilitate a bail application.
(10)M (and probably many other police officers at the police station) clearly misunderstood
the provisions of s 50 of the CPA. His response to K that he was entitled to detain the
applicant for 48 hours before being brought to court for the first time was ill conceived.
for the appellants: t p kruger with l le roux; instructed by state attorney,
pretoria, and state attorney, bloemfontein
for the respondent: l s de klerk sc; instructed by rynhart kruger attorneys, pretoria, and honey & partners inc, bloemfontein
[2012] ZASCA 146, 2013 (2) SACR 648 (SCA)
Full text of judgment available at http://www.saflii.org/za/cases/ZASCA/2012/146.html
222
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detention | juveniles | use of adult prisons unjustified | See children – Court on its Own
Motion v Dept of Women and Child Development & Ors
detention | mental illness | release | reasonable steps required where no longer
justified
GAWANAS V GOVERNMENT OF THE REPUBLIC OF NAMIBIA
supreme court
strydom, langa and o’regan ajja
namibia
3 apr 2012
G was charged with the crime of child stealing but, due to her mental illness, G was issued
with a reception order under the Mental Health Act 1973 and became a President’s patient
in the Mental Health Centre at Windhoek Central Hospital in August 1999. In April 2002,
G was temporarily released. On return she had a psychotic relapse and it was deemed
inappropriate to release her permanently. G’s condition improved and she was released on
leave again from 18 September 2002 until 13 January 2003. The process for her release (set
out in ss 29(4)-29(7) of the Mental Health Act 197313) was only started in June 2003 after
various letters from G’s legal representatives to G’s psychiatrist. The recommendations of
the hospital board, the official curator ad litem and the Prosecutor-General were then forwarded to the Minister of Justice. There, further delays occurred as the ministry was under
the false impression that only the President could discharge a President’s patient and that
the Minister of Justice, unless delegated, did not have the authority to do so. G ceased to
be treated as a President’s patient on 15 December 2003 by order of the President and was
released by a judge on 17 April 2004.
Bringing the issue in the High Court, G alleged that she was wrongfully and unlawfully
detained in the Mental Health Centre from 13 January 2003 to 15 December 2003. The claim
was mainly based on the lex Aquilia14 and, alternatively, on the infringement of her constitutional rights to personal liberty, dignity, to be free from arbitrary detention and that she had
been denied administrative justice (Articles 7,15 8,16 1117 and 1818 of the Constitution respectively).
The court ruled that the officials had not acted unlawfully as G was detained by valid
court order, reasonable explanations were given for any delays and the State owed no
legal duty to her beyond that. Furthermore, the court found that Articles 7, 8 and 11 of the
Constitution were not intended to apply to detention in a mental institution so there was
no unlawful infringement of G’s constitutional rights.
G appealed the decision to the Supreme Court on the grounds that to obtain the release of
a patient, the Mental Health Act 1973 requires the exercise of a public power by a public
authority, which constitutes an administrative act. Administrative actions are subject to
the provisions of Article 18 of the Constitution, which requires fair and reasonable action
by administrative officials.
In setting aside the order by the court a quo and referring the matter back to the High
Court to determine charges, it was held that:
(1) Compulsory detention in a mental institution when a person is mentally fit does impair
the liberty and dignity of a person (Articles 7 and 8 of the Constitution respectively).
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While they are detained they are physically restrained, have their freedom of movement removed and must adhere to the institution’s rules (Minster of Justice v Hofmeyer,
1993(3) SA 131 (A) followed).
(2) The scope of the principles of liberty and dignity is wide and can include unlawful detention under the Mental Health Act 1973. These principles are contained in
chapter 3 of the Constitution19 and should be interpreted so as to give to individuals
the full measure of the fundamental rights and freedoms referred to (dicta of Lord
Wilberforce in Minister of Home Affairs and Another v Fisher and Another [1980] AC
319 applied).
(3) The existence of a valid court order for the continued detention of a patient will
not make the detention lawful in circumstances where doctors consider the patient
fit for release but the proper procedure for release is not followed. A court order
is necessary to detain a person but the court plays no role in starting the release
process.
(4) Where a statute does authorise interference with the rights of others, the person or
authority vested with that power is under a duty, when exercising the power, to use
due care and to take all reasonable precautions to avoid or minimise injury to others. Failure to do so is negligence. If the implied limits of the statutory authority are
ignored then the source of the power will be acting without or outside their authority
and consequently unlawfully (dicta of Lord Corbett in Simon’s Town Municipality v
Dews and Another, 1993 (1) SA 191 (A) applied).
(5) Those authorities with the power to obtain the release of a patient are obliged to act
cautiously and reasonably and any steps provided by an act to obtain the release of a
detained person must be complied with reasonably.
(6) To determine what is ‘reasonable’ in the circumstances, the court should consider the
provisions of Articles 7 and 8 of the Constitution and take into account that compulsory detention in a mental institution will limit a person’s liberty and dignity if they
are mentally fit.
(7) A person under a duty should in such circumstances foresee the possibility of his
conduct causing loss to another person and should take reasonable steps to avoid
such a possibility (Kruger v Coetzee 1966(2) SA 428 (A) followed). Where a person
is unlawfully detained, harm is foreseeable. Liberty and protection against arbitrary
arrest and detention form the cornerstones of any constitution based on human rights
and respect for the individual. The right to liberty (Article 7 of the Constitution) is a
substantive right in Namibia, which guarantees personal liberty (Alexander v Minister
of Justice and Others (SA 32/2008) [2010] NASC 2 (9 April 2010) followed).
(8) Therefore, the State owes a patient a legal duty to take reasonable steps to secure
their release once their medical condition has improved to the point that doctors consider their detention in an institution unnecessary. If not, the State will be subject to
aquilian liability.
(9) Finally, the process of release must be completed within a reasonable time. The process
is somewhat time-consuming, but once the decision has been made that the process
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may be commenced, the parties involved must act expeditiously. Three months would
be a reasonable period to allow for the gathering of any relevant information and to
complete the discharge of a patient – although, depending on the circumstances, this
may be reasonably extended or shortened.
(10)Accordingly, G was unlawfully detained for a period of seven and a half months. The
State and other parties involved did not provide reasonable explanation for the delay
and therefore did not act reasonably. Thus the State is liable to compensate G for the
loss she has suffered as a result of the unlawful detention.
for the appellant: mr r tötemeyer; instructed by legal assistance centre
for the respondent: no appearance
[2012] NASC 1
Full text of judgment available at http://www.saflii.org/na/cases/NASC/2012/1.html
detention | pre-trial | length was unreasonable | See fair hearing – Selwyn Charles v The
Attorney General
1. The reasons given for the grant of such order were: ‘1. That
the Person remains in Samoa in breach of the provisions of
the Immigration Act and; 2. That the Person is likely to be
a danger to the peace, order or good governance of Samoa
and; 3. The Person is without sufficient lawful means of
support and; 4. The Person is otherwise regarded by the
Minister as an undesirable immigrant.’
2. Article 4 provides that: ‘(1) Any person may apply to the
Supreme Court by appropriate proceedings to enforce the rights
conferred under the provisions of this part. (2) The Supreme
Court shall have the power to make all such orders as may be
necessary and appropriate to secure the applicant the enjoyment
of any rights conferred under the provisions of this part.’
3. Article 6(1) provides that: ‘No person shall be deprived of
his personal liberty except in accordance with law.’
4. Article 7(1) provides that: ‘No person shall be subjected to
torture or inhumane or degrading treatment or punishment.’
5. Article 14(1) provides that: ‘No property shall be taken
possession of compulsorily and no right over any interest in
any property shall be acquired compulsorily, except under
the law which, when read with any other law…(c) Gives rights
to any party to proceedings in the Supreme Court relating
to such a claim the same rights of appeal as are accorded
generally to parties to civil proceedings.’
6. Article 9 provides: ‘Security of person. No person shall be
deprived of life or liberty save in accordance with law.’
7. Article 32 provides: ‘Promotion of local Government
institutions. The State shall encourage local Government
institutions composed of elected representatives of the areas
concerned and in such institutions special representation will
be given to peasants, workers and women.’
8 CHRLD
8. Article 140A provides: ‘Local Government: (1) Each Province
shall, by law, establish a local government system and
devolve political, administrative and financial responsibility
and authority to the elected representatives of the local
governments; (2) Elections to the local governments shall be
held by the Election Commission of Pakistan.’
9. Article 9 as above. Article 14 provides: ‘Inviolability of
dignity of man, etc. (1) The dignity of man and, subject to
law, the privacy of home, shall be inviolable; (2) No person
shall be subjected to torture for the purpose of extracting
evidence.’ Article 15 provides: ‘Freedom of movement, etc.
(1) The dignity of man and, subject to law, the privacy of
home, shall be inviolable; (2) No person shall be subjected
to torture for the purpose of extracting evidence.’ Article
18 provides: ‘Freedom of trade, business or profession. Subject
to such qualifications, if any, as may be prescribed by law,
every citizen shall have the right to enter upon any lawful
profession or occupation, and to conduct any lawful trade
or business: Provided that nothing in this Article shall
prevent: (a) the regulation of any trade or profession by a
licensing system; or (b) the regulation of trade, commerce
or industry in the interest of free competition therein; or (c)
the carrying on, by the Federal Government or a Provincial
Government, or by a corporation controlled by any such
Government, of any trade, business, industry or service, to
the exclusion, complete or partial, of other persons.’ Article
24 provides: ‘Protection of property rights. (1) No person shall
be compulsorily deprived of his property save in accordance
with law; (2) No property shall be compulsorily acquired or
taken possession of save for a public purpose, and save by the
authority of law which provides for compensation therefore
and either fixes the amount of compensation or specifies
the principles on and the manner in which compensation
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|
life
is to be determined and given; (3) Nothing in this Article
shall affect the validity of: (a) any law permitting the
compulsory acquisition or taking possession of any property
for preventing danger to life, property or public health; or (b)
any law permitting the taking over of any property which has
been acquired by, or come into the possession of, any person
by any unfair means, or in any manner, contrary to law; or (c)
any law relating to the acquisition, administration or disposal
of any property which is or is deemed to be enemy property
or evacuee property under any law (not being property which
has ceased to be evacuee property under any law); or (d)
any law providing for the taking over of the management of
any property by the State for a limited period, either in the
public interest or in order to secure the proper management
of the property, or for the benefit of its owner; or (e) any law
providing for the acquisition of any class of property for the
purpose of (i) providing education and medical aid to all or
any specified class of citizens; or (ii) providing housing and
public facilities and services such as roads, water supply,
sewerage, gas and electric power to all or any specified class
of citizens; or (iii) providing maintenance to those who, on
account of unemployment, sickness, infirmity or old age, are
unable to maintain themselves; or (f) any existing law or any
law made in pursuance of Article 253; (4) The adequacy or
otherwise of any compensation provided for by any such law
as is referred to in this Article, or determined in pursuance
thereof, shall not be called in question in any court.’
10. Article 63(1)(g) provides: ‘Disqualifications for membership
of Majlis-e-Shoora (Parliament): (1) A person shall be
disqualified from being elected or chosen as, and from being,
a member of the Majlis-e-Shoora (Parliament), if…(g) he
has been convicted by a court of competent jurisdiction for
propagating any opinion, or acting in any manner, prejudicial
to the ideology of Pakistan, or the sovereignty, integrity or
security of Pakistan, or morality, or the maintenance of
public order, or the integrity or independence of the judiciary
of Pakistan, or which defames or brings into ridicule the
judiciary or the Armed Forces of Pakistan, unless a period of
five years has elapsed since his release.’
11. Section 50(1) provides: ‘(a) Any person who is arrested with
or without warrant for allegedly committing an offence, or
for any other reason, shall as soon as possible be brought to
a police station or, in the case of an arrest by warrant, to any
other place which is expressly mentioned in the warrant. (b)
A person who is in detention as contemplated in paragraph
(a) shall, as soon as reasonably possible, be informed of
his or her right to institute bail proceedings. (c) Subject to
paragraph (d), if such an arrested person is not released by
reason that: (i) no charge is to be brought against him or her;
or (ii) bail is not granted to him or her in terms of section
59 or 59A, he or she shall be brought before a lower court as
soon as reasonably possible, but not later than 48 hours after
the arrest. (d) If the period of 48 hours expires: (i) outside
ordinary court hours or on a day which is not an ordinary
court day, the accused shall be brought before a lower court
not later than the end of the first court day…’
12. Section 50(6) provides: ‘(a) At his or her first appearance
in court a person contemplated in subsection (1)(a) who:
(i) was arrested for allegedly committing an offence shall,
subject to this subsection and section 60: (aa) be informed
by the court of the reason for his or her further detention; or
(bb) be charged and be entitled to apply to be released…’
13. Sections 29(4)-29(7) provide that a minister may order
the discharge of a President’s patient who has not been
detained in respect of a charge of murder, culpable homicide
or serious violence once s/he has obtained a report from
the hospital board and official curator ad litem concerned.
(In G’s case the official curator ad litem and the ProsecutorGeneral determined that she fell within these provisions.)
The minister’s order is then forwarded to the superintendent
of the hospital who is to provide a report on the patients to be
placed before a judge.
14. Compensation for unlawfully inflicted damage.
15. Article 7 (Protection of Liberty) provides: ‘No persons shall
be deprived of personal liberty except according to procedures
established by law.’
16. Article 8 (Respect for Human Dignity) provides: ‘(1) The
dignity of all persons shall be inviolable. (2) (a) In any judicial
proceedings or in other proceedings before any organ of
the State, and during the enforcement of a penalty, respect
for human dignity shall be guaranteed. (b) No persons shall
be subject to torture or to cruel, inhuman or degrading
treatment or punishment.’
17. Article 11 (Arrest and Detention) provides: ‘(1) No persons
shall be subject to arbitrary arrest or detention.’ The rest of
article 11 is not relevant here.
18. Article 18 (Administrative Justice) provides: ‘Administrative
bodies and administrative officials shall act fairly and
reasonably and comply with the requirements imposed upon
such bodies and officials by common law and any relevant
legislation, and persons aggrieved by the exercise of such acts
and decisions shall have the right to seek redress before a
competent Court or Tribunal.’
19. Chapter 3 of the Namibia Constitution lists ‘Fundamental
Human Rights and Freedoms’.
Life
death penalty | mandatory sentence unconstitutional | See death penalty – Miguel v
The State
exposure to danger | policing by non-professionals and youths with inadequate
training | use unjustified
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NANDINI SUNDAR & ORS V STATE OF CHATTISGARH
supreme court
sudershan reddy j
india
5 jul 2011
In response to an ongoing insurgency by Maoist/Naxalite groups, the State of
Chattisgarh appointed local tribal youths to act as Special Police Officers (‘SPOs’) to
work alongside the regular police forces and counter the unrest. A writ petition was filed
in 2007 by three petitioners, NS, RG and ES, who alleged, inter alia, that on account of
the SPO appointments, the State of Chattisgarh (hereafter ‘the State’) was responsible
for the widespread violation of the human rights of the people of Dantewada district.
The petitioners also claimed that through the SPO appointments, the State was in fact
supporting an armed civilian vigilante group, Salwa Judum (also popularly known as
the Koya Commandos), which exacerbated the ongoing conflict and led to further violations of human rights.
At the initial stages of the hearing the court directed that the National Human Rights
Commission (‘the NHRC’) should commission a report to investigate the petitioners’ allegations. The NHRC report was filed in 2008 and the court directed that the Government
of Chattisgarh consider its recommendations. In a further order in 2010 it was noted that
approximately 3,000 SPOs had been appointed by the State in addition to the regular
police force1 and that the State had emphatically denied that private citizens were provided
with firearms.
In the course of the hearings, three aspects of the NHRC’s findings were considered by the
court, two of which were dealt with in the present judgment:2
(1) The three original petitioners claimed that the manner in which the SPOs were
appointed, the nature of their training, their status as police officers, the fact that
they were provided with firearms and the allegations of excessive violence perpetrated
by them violated the rights of the people of Dantewada and of the SPOs themselves
under Articles 14 and 21 of the Constitution.
(2) Fresh allegations were made against the State by activist SA. These allegations included that 300 houses were burnt down in the three villages of Morpalli, Tadmetla and
Timmapuram, that a number of women were raped and men killed in March 2011
and that activist SA and his colleagues were attacked on two occasions by individuals
including SPOs and/or members of Salwa Judum despite the presence of security forces and assurances from the Chief Minister of Chattisgarh that they would be protected.
In response to the petitioners’ allegations, the State submitted two affidavits and a written
note to the court confirming that the SPOs were appointed on a temporary basis to act as
guides, spotters and translators for the regular police/security forces and were effective
against the Maoists/Naxalites owing to their familiarity with the local terrain, dialect and
customs of the affected areas. They were given firearms only for self-defence purposes
and were recruited from volunteers among tribes affected by the insurgency violence and
who were motivated to serve as SPOs to prevent further attacks on their families. The State
submitted that SPOs were an ‘auxiliary police force and force multiplier’, that the welfare
of the SPOs was looked after as part of the regular force and that they were subject to
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the same laws and protections. They were paid an honorarium of between INR1,500 and
INR3,000 per month, of which 80 per cent was contributed by the Central Government
scheme to assist the security activities of states. Preference was given to youths who had
passed fifth standard. As training they were given two months’ tuition in a range of subjects including medical care, law, human rights and forensic science.
In response to allegations concerning the State’s support of Salwa Judum (or Koya
Commandos) the State asserted that Salwa Judum had ceased to operate and that claims that
the group continued in the form of the SPOs and Koya Commandos were misconceived.
In affidavit, the Union of India (‘the Union’) submitted that SPOs functioned as a stable
presence to assist the regular police force, unlike the army which is frequently withdrawn
or relocated. The Union maintained that SPOs were necessary in situations of counterinsurgency and terrorism and to maintain law and order generally. The Union also assured
the court that SPOs were legally treated on a par with ordinary police officers.
In allowing the petitions and prohibiting the State of Chattisgarh from using SPOs in
activities aimed at countering Maoist/Naxalite insurgencies, as well prohibiting the Union
of India from using its funds to support the recruitment of SPOs for this purpose, it was
held that:
(1) Contrary to the assertions by the State and the Union that tribal SPOs are recruited
only to engage in non-combatant roles (e.g. as spotters and guides), they were in fact
appointed to engage in armed conflict with Maoists/Naxalites.
(2) This was a violation of their rights under Article 143 of the Constitution because the
State had subjected these youths to the same levels of danger as members of the regular
forces, despite the fact that regular police personnel have better educational backgrounds and more thorough training. The rudimentary training the SPOs were given
was clearly insufficient and, in any event, the SPOs were not capable of developing the
skills and discretionary judgement needed to engage effectively in counter-insurgency
because of their poor educational backgrounds. Despite being treated as regular police
force members and expected to perform all the same duties, including counter-terrorism work, the tribal youths were only employed temporarily and paid an ‘honorarium’
as opposed to a salary, which is a further violation of Article 14.
(3) Article 214 was violated because the youngsters were ill-prepared and under-educated for such dangerous activities, regardless of the alleged willingness on their part.
Their low educational levels, and the complexity of the issues they were supposed to
grasp led the court to find that the appropriate conditions for fully informed consent
were not met. The State’s claims that the youths had often been victims of Maoist/
Naxalite violence and were motivated by a desire to protect their communities indicated to the court that the youngsters were in truth motivated by anger and the need
for revenge. These feelings could cause them to mistakenly identify someone as a
Maoist/Naxalite, which in turn could lead to grave violations of the Article 21 rights
of others in society.
In ordering the State of Chattisgarh to make every effort to recall all firearms issued to current and former SPOs, and to make arrangements to provide appropriate security (within the
bounds of constitutional permissibility) to protect the lives of former SPOs, it was held that:
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(1) The lack of equal education and training given were further violations of the SPOs’
Article 21 rights, as the SPOs would not develop the analytical skills and judgement
required for the correct use of the firearms they had been given, which endangered
their lives and the lives of others around them.
(2) The temporary nature of the employment of the SPOs subjects them to further danger
in the form of reprisals from Maoists/Naxalites even after they have been discharged
from their employment. This endangers the Article 21 rights of wider society as the
SPOs may not wish to return their firearms if their safety is not assured following
their discharge, and it is therefore conceivable that the conflict in the districts would
be exacerbated by the presence of more armed youths.
(3) The appointment of SPOs to perform any duties of regular police officers other than
those specified in ss 23(1)(h) and 23(1)(i) of the Chattisgarh Police Act (CPA) 2007
is unconstitutional and is an abdication by the State of its constitutional responsibilities to provide appropriate security for all citizens through a professionally trained
and permanently resourced police force. In respect of the State’s assertion that SPOs
are an effective counter-measure to the insurgencies, the court found that efficiency
should not be the sole measure of success and cannot override other constitutional
goals and principles.
In ordering the Central Bureau of Investigation to immediately take over the investigation
of the incidents of violence in the three village districts and the incident of violence against
SA and others, as well as taking appropriate legal action, it was held that:
The State’s offer to institute an inquiry commission to investigate the allegations was
inadequate. It may at best lead to the prevention of future incidents but did not fulfil the
requirement of the law that crimes against citizens be fully investigated and those involved
in criminal activities punished.
Observations
It was acknowledged that large tracts of the State had been affected by Maoist activity. The
court asserted that the problem lay with the ‘amoral political economy that the State endorses
and the resultant revolutionary politics it necessarily spawns’. Instead of locating the causes
of the problem within the sense of disempowerment wrought by a developmental paradigm
based on plunder of natural resources and insensitivity to the needs of tribal communities, the
State considered the issue to be simply one of law and order that must be countered by force.
for the petitioners: ashok h desai
for the respondent: harish n salve and m n krishnamani
for the union of india: solicitor general of india gopal subrahmanyam
[2011] INSC 574
Full text of judgment available at http://www.liiofindia.org/in/cases/cen/INSC/2011/574.
html
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life
medical treatment | access | presumption that generic drugs were counterfeit
unjustified
PAO & ORS V ATTORNEY GENERAL & ANOR
high court
ngugi j
kenya
20 apr 2012
PAO, MA and JM (the petitioners) were citizens of Kenya living with HIV/AIDS. The petitioners submitted that 90 per cent of persons with HIV/AIDS used generic drugs imported
by the Kenyan Government and donors. The petitioners claimed that the Anti-Counterfeit
Act 2008 (‘the Act’), specifically ss 2,5 326 and 347 thereof, threatened their access to affordable
and essential drugs and medicines, thereby infringing their fundamental right to life, human
dignity and health as protected by Articles 26(1),8 289 and 4310 of the Constitution. According
to the petitioners, while the objective of the Act is to prohibit trade in counterfeit goods, as
currently written it endangers the health of HIV/AIDS sufferers. This violation of a constitutional right cannot be justified on the basis of intellectual property obligations or otherwise.
The petitioners sought judgment to declare that the Act infringes their right to life, in so
far as it limits access to affordable drugs and medicines. The judge ruled in favour of the
petitioners, surmising that it was incumbent on the State to reconsider the provisions of s
2 of the Act alongside its constitutional obligations to its citizens and to make the appropriate amendments.
In upholding the petition, it was held that:
Per Ngugi J:
(1) The Kenyan Government failed to acknowledge and specifically exempt generic drugs
and medicines from the definition of counterfeit goods under s 2 of the Act.
(2) This law effectively prohibited the importation and manufacture of generic drugs and
medicines and meant any such medicine deemed counterfeit within the meaning of
the Act was liable to seizure.
(3) It imposed an undue burden on drugs consumers to prove that their drugs were not
counterfeit and resulted in an increase in the cost of treatments as sufferers were
forced to rely on more expensive branded drugs.
(4) The Government failed to clarify the application of the Industrial Property Act 2001
that permitted the parallel importation of generic anti-retroviral drugs and medication
which, until its passage, had been too expensive for poorer people with HIV/AIDS.
(5) Numerous reports, including the 2010 Country Report to the United Nations General
Assembly Special Session on HIV & AIDS, highlighted the socio-economic implications of the condition. They confirmed that without medical intervention and
treatment an infected person would ultimately succumb to the infections that result
from their compromised immune system.
(6) The right to health has been entrenched in the Constitution, the International Covenant
on Economic, Social and Cultural Rights, the Convention on the Elimination of All
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Forms of Discrimination against Women and the Convention of the Rights of the
Child.
(7) Similar instances in other jurisdictions were cited in which generic medicine was
seized in transit on the basis that it was counterfeit. These seizures, in developing
countries with large populations dependent on them for survival, severely affected
users of generic drugs.
(8) Section 2 of the Act accorded owners of intellectual property rights in other countries permission to enforce those rights in Kenya without regard or compliance with
national laws, subjecting Kenyans to the laws of other countries.
(9)The amicus argued that Kenya had already fulfilled its obligations with regard to intellectual property rights under TRIPS by enacting the Industrial Property Act 2001.
(10)The respondents contended that the intention behind the Act was to protect citizens by
prohibiting the trade of counterfeit goods, such as counterfeit medicine, which pose a
danger to the life and health of Kenyans. They submitted that the definition of counterfeit with regard to medicine did not create the ambiguity the petitioners feared.
(11) The respondents argued that the Act gave priority and special consideration to medicine because of its importance to both the State and the public. It also provided
sufficient safeguards for users of antiretroviral drugs against those who marketed
counterfeit goods while ensuring continued access to these drugs.
(12) The object of the Act was ultimately to protect the intellectual property rights of individuals with regard to counterfeit medicine at the jeopardy of the fundamental rights
of the petitioners such as the right to life.
(13) The definition of ‘counterfeit’ in s 2 of the Act was deemed to encompass generic
medicines produced in Kenya and elsewhere. It was seen as likely to adversely affect
the manufacture, sale and distribution of generic equivalents of patented drugs which
would affect their availability and therefore pose a real threat to the petitioners’ rights
to life, dignity and health under the Constitution.
(14)Sections 2, 32 and 34 of the Act threaten to violate the rights to life of the petitioners
as protected by Article 26(1), the right to human dignity under Article 28 and the right
to the highest attainable standard of health guaranteed under Article 43(1).
(15)The State was ordered to reconsider the provisions of s 2 of the Act and to make
the appropriate amendments to ensure that the rights of the petitioners and others
dependent on generic medicines are not put in jeopardy.
for the petitioners: mr luseno
for the respondents: ms kimaiyo
for the interested party (aids law project): mr ombati
[2012] eKLR, Petition 409 of 2009
Full text of judgment available at http://kenyalaw.org/Downloads_FreeCases/85611.pdf
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life
medical treatment | force feeding | justified where capacity impaired and in
patient’s best interests
RE E (MEDICAL TREATMENT: ANOREXIA)
court of protection (england & wales)
jackson j
united kingdom
15 june 2012
E, a 32 year old woman, suffered from severe anorexia nervosa, unstable personality
disorder, alcohol dependence, opiate dependence and the consequences of long-term malnutrition. She started controlling her eating and using alcohol from a young age following
a long period of sexual abuse. At the age of 15 she was treated at a specialist eating disorder
unit, which was successful in the short term. There followed a successful period in education until, in 2006, aged 26, E began a continuous series of emergencies and admissions
that lasted until 2012, including compulsory treatment under the Mental Health Act 1983.
She twice attempted to make advance decisions stating that she did not want to be resuscitated or given life-prolonging treatment. In April 2012 it was decided that all treatment
options had been exhausted and she was placed on an ‘end of life’ care pathway. Her death
was imminent. The local authority was concerned that the case should be more fully investigated and submitted an urgent application to the court.
In finding that E lacked capacity to make a decision about life-sustaining treatment, that
her advance decisions were invalid and that it was in her best interests to be fed against
her wishes, it was held that:
(1) A person who suffers from severe anorexia has an impairment of, or a disturbance
in the functioning of, the mind or brain. Despite retaining the ability to understand,
retain and communicate information relating to the treatment decision, the patient
is incapable of weighing the advantages and disadvantages of eating in any meaningful way and so lacks capacity to make any decisions regarding ongoing treatment.11
(2) For an advance decision relating to life-sustaining treatment to be valid and applicable, there should be clear evidence establishing on the balance of probability that the
maker had capacity at the relevant time. Where the evidence of capacity is doubtful or
equivocal it is not appropriate to uphold the decision.12
(3) A person who lacks capacity in relation to forcible feeding also lacks capacity as to
other related forms of treatment, such as mechanical ventilation, as these are central
to or supportive of a single purpose.
(4) In deciding whether treatment by forcible feeding is in the best interests of the patient,
a balance must be struck between the value of the patient’s life and the value of their
independence, weighed in the light of the reality of the situation.13
(5) There is a strong presumption that all steps will be taken to preserve life. This
is reflected in Article 214 of the European Convention on Human Rights (‘the
ECHR’).
(6) Forcible feeding and related treatments amount to an interference with a person’s
rights under Article 815 of the ECHR (respect for private life) and must be necessary,
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in accordance with the law and proportionate to a legitimate aim, namely the preservation of life.
(7) Such treatment also amounts to an assault on the patient and constitutes a violation of
the patient’s rights under Article 3 of the ECHR (prohibition of inhuman or degrading
treatment) unless it can be shown that it is in the patient’s best interests on the basis
of therapeutic necessity convincingly shown to exist.
Observations
In a case with legal, moral and ethical dimensions, it is important for the court to ensure
that it is informed of the actual practical possibilities and not to be drawn into theorising.
for the applicant: paul bowen qc and stephen broach; instructed by local
authority legal solutions
for the respondent e: christopher johnston qc and susanna rickard; instructed
by the official solicitor
for the respondent the health authority: mark mullins; instructed by legal and
risk services
e’s parents represented themselves
[2012] EWCOP 1639, [2012] EWHC 1639 (COP)
Full text of judgment available at http://www.bailii.org/ew/cases/EWHC/COP/2012/
1639.html
medical treatment | pregnancy | mother mortality ratio | failure to adequately
implement preventive scheme | See health – Sandesh Bansal v Union of India & Ors
suicide | patient | reasonable steps to prevent risk not taken
RABONE & ANOR V PENNINE CARE NHS FOUNDATION TRUST
supreme court
lord walker, lady hale, lord brown, lord mance and lord dyson
united kingdom
8 feb 2012
M had a history of depression and on 4 March 2005 she tried to commit suicide. She was
admitted to Stepping Hill Hospital where she was diagnosed with a severe episode of a
recurrent depressive disorder. On 18 March 2005 M was discharged as the hospital was
satisfied that she was making a sufficient recovery. However, on 31 March 2005 she cut her
wrists with broken glass and her doctor, a consultant psychiatrist, advised that she should
be readmitted to hospital. However, no beds were available at the hospital and on 6 April
2005 she was seen as an outpatient by a senior house officer. On 11 April 2005 M tied a
lamp flex around her neck. She agreed to a voluntary admission to the hospital. The senior
house officer observed that if M attempted or demanded to leave she should be assessed
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for detention under the Mental Health Act 1983. She was prescribed a course of drugs and
kept under observation at 15-minute intervals. The ward nurse assessed M as a moderate
to high suicide risk. On various occasions after 13 April 2005 M’s father expressed concerns that she was not improving and should not be allowed home too soon. However, M
had been requesting home leave and on 19 April 2005 the consultant psychiatrist agreed
to allow her home leave for two days and nights. On 20 April 2005 M, aged 24, hanged
herself.
On 11 August 2006 M’s father issued proceedings against the trust claiming damages in
negligence on behalf of M’s estate and under Article 216 of the European Convention on
Human Rights (‘the ECHR’) for an alleged contravention of both the positive obligation
to protect life and the investigative obligation under Article 2 (in the event the court was
only concerned with the former) on behalf of himself and M’s mother. The estate’s claim
was settled in May 2008 for £7,500 plus costs. In relation to the claims under Article 2 of
the ECHR, six issues were the subject of the appeal to the Supreme Court: (1) whether the
operational obligation under Article 2 can be owed to a hospital patient who is mentally
ill but not detained; (2) if so, whether the trust breached that duty; (3) if so, whether M’s
parents were ‘victims’ within the meaning of the ECHR; (4) if so, whether they lost their
victim status by reason of the settlement; (5) whether their claims were time-barred; and,
if not, (6) whether the Court of Appeal erred in holding that they would have awarded
£5,000 to each of M’s parents if their claims had been established.
In allowing the appeal unanimously, it was held that:
Per Lord Dyson (Lord Walker, Lady Hale, Lord Brown and Lord Mance concurring):
(1) An operational duty under Article 2 can be owed to a hospital patient who is mentally ill but not detained under the Mental Health Act 1983. The operational duty will
be held to exist where there has been an assumption of responsibility by the State
for the individual’s welfare and safety, particularly in relation to those who are especially vulnerable by reason of their mental condition (Savage v South Essex Partnership
NHS Foundation Trust [2009] AC 681 applied). M’s mental state meant that she was
extremely vulnerable and the trust assumed responsibility for her. In reality, the difference between her position and that of a hypothetical detained psychiatric patient
was one of form, not of substance (Powell v United Kingdom (2000) 30 EHRR CD 362
considered).
(2) The risk of M’s suicide on 19 April 2005, of which the trust knew or ought to have
known and which they failed to take reasonable steps to avoid, was ‘real and immediate’. There was a real risk that she would take her life during the two-day period of
home leave. That was sufficient to make the risk present and continuing and, therefore, immediate. Therefore, the decision to allow M two days of home leave was one
that no reasonable psychiatric practitioner would have made and the trust failed to do
all that could reasonably have been expected to prevent the real and immediate risk of
M’s suicide, in breach of its Article 2 operational duty.
(3) M’s parents are ‘victims’ within the meaning of Article 34 of the ECHR. The European
Court of Human Rights (‘the ECtHR’) has repeatedly stated that family members
of a deceased can bring claims in their own right under Article 2 (Edwards v United
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Kingdom (2002) 35 EHRR 487 at para 106; Renolde v France (2009) 48 EHRR 42, para
69; and Kats v Ukraine (2010) 51 EHRR 44, para 94 considered). There is no basis for
believing that the ECtHR would depart from this consistent line of authority if the
contrary were argued.
(4) M’s parents did not lose their victim status as a result of the settlement of their negligence claim as they had not surrendered their own claims under Article 2 for damages
as a result of their bereavement. Under English law, no such claim could be made as
damages for bereavement are only available for the loss of a child where the child is
under 18. The trust did not make adequate redress and therefore M’s parents did not
lose their victim status by accepting the settlement figure on behalf of M’s estate.
(5) An authority may in substance acknowledge a breach of Article 2 without making an
explicit admission of the elements of the breach of the Article 2 duty (Nikolova and
Velichkova v Bulgaria (2009) 48 EHRR 915 applied). M’s vulnerability and the failure
of the trust to take reasonable steps to protect her forms the basis of the claim in negligence and the claim for breach of the Article 2 operational duty. The trust in substance
acknowledges their breach of the Article 2 duty.
(6) A claim against a public authority for breach of an ECHR right must be brought
within a year of the act complained of or such longer period as the court considers
equitable. The extension of time sought by M’s parents was less than four months.
There is no suggestion that the evidence has become less cogent as a result of the
delay or that the trust suffered prejudice as a result of the delay. M’s parents acted
reasonably in not issuing proceedings and have a good claim for breach of Article 2 of
the ECHR. Therefore, the court grants the necessary extension of time and the claim
is not time-barred.
(7) The court awards M’s parents £5,000 each. This was a bad case of breach of the Article
2 operational duty which merited an award well above the lower end of the range.
Factors which will be taken into account are the close family ties between the victim
and the deceased, the fact that the breach is especially egregious, and the fact that the
circumstances of the death and the authority’s response to it have been particularly
distressing to the victims (Kallis v Turkey (2009) ECHR 1662 considered).
Observations
Per Lady Hale:
The State’s positive obligation to protect life entails an obligation to take positive steps to
prevent a real and immediate risk to the life of a particular individual from materialising.
Although M made a voluntary admission to hospital, the trust could at any time have prevented her from leaving under s 5(4) of the Mental Health Act 1983. Having regard to the
nature and degree of the risk to her life, and the comparative ease of protecting her from
it, her right to life was violated.
for the appellants: jenni richards qc and nigel poole; instructed by pannone llp
for the respondent: monica carss-frisk qc and jane mulcahy; instructed by
hempsons
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for the interveners (inquest, justice, liberty and mind): paul bowen and alison
pickup; instructed by bindmans llp
[2012] UKSC 2, [2012] PTSR 497, [2012] WLR(D) 23, 33 BHRC 208, [2012] 2 WLR 381, [2012] Med LR 221, [2012]
UKSC 2, [2012] 2 All ER 381, [2012] MHLR 66, [2012] 2 AC 72, (2012) 124 BMLR 148, (2012) 15 CCL Rep 13
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2012/2.html
unborn child | abortion | legislation did not create any right |
See
children –
Abortion Supervisory Committee v Right To Life New Zealand Inc
1. By the time the court received the State’s affidavit relating
to this matter, this number had risen to 6,500 SPOs.
himself if he is unable to use or weigh that information as
part of the process of making the decision.’
2. The court resolved to deal with the third issue – namely,
that a number of schools in the State were occupied by
various security forces thereby precluding the proper
education of students – in a separate judgment. The court
ordered the State to release these schools, hospitals, ashrams
and angawadis from occupation.
12. MCA Code of Practice paragraph 9.67 provides: ‘The
Court of Protection can make a decision where there is
genuine doubt or disagreement about an advance decision’s
existence, validity or applicability. But the court does not
have the power to overturn a valid or applicable advance
decision.’
3. Article 14 provides: ‘The State shall not deny to any person
equality before the law or the equal protection of the laws
within the territory of India.’
13. The person making the determination of best interests
must also follow the list of steps provided in s 4 of the
MCA.
4. Article 21 provides: ‘No person shall be deprived of his life
or personal liberty except according to procedure established
by law.’
14. Article 2 (right to life) provides: ‘1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his
life intentionally save in execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law. 2. Deprivation of life shall not be regarded as
inflicted in contravention of this Article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence; (b) in
order to effect a lawful arrest or to prevent the escape of a
person lawfully detained; (c) in action lawfully taken for the
purpose of quelling a riot or insurrection.’
5. Under s 2 the definition of counterfeit drugs includes the
‘manufacture, production…or making, whether in Kenya or
elsewhere, of any goods whereby those protected goods are
imitated in such manner and to such a degree that those
other goods are identical or substantially similar copies of the
protected goods.’
6. Section 32 provides: ‘It shall be an offence for any person
to (a) have in his possession or control in the course of trade,
any counterfeit goods…’
7. Section 34(1) provides: ‘The owner of an intellectual
property right, who has valid grounds for suspecting
that the importation of counterfeit goods may take
place, may apply to the Commissioner in the prescribed
manner to seize and detain [certain] suspected counterfeit
goods.’
8. Article 26(1) provides: ‘Every person has the right to life.’
9. Article 28 provides: ‘Every person has inherent dignity and
the right to have that dignity respected and protected.’
10. Article 43(1) provides: ‘Every person has the right
(a) to receive the highest attainable standard of health,
which includes the right to health care services, including
reproductive health care…’
11. Section 2(1) of the Mental Capacity Act 2005 (‘MCA’)
provides that ‘a person lacks capacity in relation to a matter
if at the material time he is unable to make a decision for
himself in relation to the matter because of an impairment
of, or a disturbance in the functioning of, the mind or brain’.
Under s 3(1)(c) ‘a person is unable to make a decision for
236
15. Article 8 (right to respect for private and family life)
provides: ‘1. Everyone has the right to respect for his private
and family life, his home and his correspondence. 2. There
shall be no interference by a public authority with the
exercise of this right except such as in accordance with the
law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the
rights and freedoms of others.’
16. Article 2 provides: ‘(1) Everyone’s right to life shall
be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty
is provided by law. (2) Deprivation of life shall not be
regarded as inflicted in contravention of this article when
it results from the use of force which is no more than
absolutely necessary: (a) in defence of any person from
unlawful violence; (b) in order to effect a lawful arrest or
to prevent escape of a person lawfully detained; and (c) in
action lawfully taken for the purpose of quelling a riot or
insurrection.’
8 CHRLD
movement
Movement
expulsion | asylum-seeker | failure to assess claim | ministerial authorisation
invalid
PLAINTIFF M70/2011 V MINISTER FOR IMMIGRATION AND CITIZENSHIP;
PLAINTIFF M106 OF 2011 V MINISTER FOR IMMIGRATION AND CITIZENSHIP
high court
french cj, gummow, hayne, heydon, crennan,
kiefel and bell jj
australia
31 aug 2011
The plaintiffs (M70 and M106), citizens of Afghanistan, arrived at the Australian territory of Christmas Island by boat on 4 August 2011. M106 was a minor and had arrived in
Australia unaccompanied by parents or a guardian. Both had travelled through Malaysia
without authority under Malaysian immigration law. Each claimed to have a well-founded
fear of persecution in Afghanistan on grounds that would, if established, make them refugees to whom Australia owed protection obligations under the Convention Relating to
the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees
1967 (‘the Refugee Convention’). As M70 and M106 lacked visas to enter Australia, they
were unlawful non-citizens under the Migration Act 1958 (‘the Migration Act’) and, having entered Australia from an ‘excised offshore place’, both were ‘offshore entry persons’
and were detained under s 189(3)1 of the Migration Act. M70 and M106 were subject to a
new regime established by the Commonwealth Government for their transfer to Malaysia
without prior assessment of their protection claims (‘the arrangement’). Under these
arrangements, the assessment of their claims for protection as refugees would be carried
out in Malaysia by the United Nations High Commissioner for Refugees. In respect of
M70, an officer determined he was liable for removal from Australia to Malaysia under the
arrangements as an ‘offshore entry person’ pursuant to powers conferred by ss 198(2)2 and
198A3 of the Migration Act. It was determined that the only impediment to the removal of
M106 was the establishment in Malaysia of relevant support services for unaccompanied
minors.
M70 and M106 applied for an injunction restraining the Minister for Immigration and
Citizenship (‘the Minister’) from removing them from Australia. Interlocutory orders
were made, preventing the Minister from removing the plaintiffs until the determination of the High Court. M70 and M106 claimed that the only source of power to remove
them from Australia was s 198A of the Migration Act and that this was conditional on the
Minister having made a valid declaration under s 198A(3) of the Act. They claimed the declaration made by the Minister in relation to Malaysia was not valid. In addition, as M106
was a minor, s 64 of the Immigration (Guardianship of Children) Act 1946 (‘the IGOC
Act’) meant that the Minister, as his guardian, was under a duty to consider his powers to
allow M106 to apply for a visa under ss 46A5 and 195A6 of the Migration Act. Moreover,
the Minister’s consent was required under s 6A7 of the IGOC Act before M106 could be
removed from Australia.
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movement
The Minister and the Commonwealth claimed that the declaration made by the Minister
was valid and that therefore there was a power to remove M70 and M106 under s 198A(3)
of the Migration Act. Further, even if the declaration was invalid, there was a separate
power to remove M70 and M106 to Malaysia under s 198(2) of the Migration Act.
In granting the application (Heydon J dissenting) it was held that:
(1) An offshore entry person, claiming to be a refugee and detained under s 189(2) of the
Migration Act could not be taken from Australia other than pursuant to s 198A unless
that person’s claim for protection had been assessed within Australia. There was no
power to remove persons under s 198(2) of the Migration Act without a determination of their refugee status. To read s 198(2) as giving a separate power to remove an
individual without assessing their claims as refugees to any country would potentially
breach Australia’s obligations under the Refugee Convention. Section 198A was, therefore, the only legislative source of power for the Minister to take persons seeking asylum
to another country for determination of their refugee status (Anthony Hordern & Sons Ltd
v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Minister for
Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] 228 CLR 566 and
Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 applied).
(2) Section 198A(3) of the Migration Act concerns the protection Australia was obliged
to provide as a result of signing the Convention. A country does not provide protections of the kind described in s 198A(3) unless its domestic law expressly deals with
persons seeking asylum or with refugee status or it is internationally obliged to provide the particular protections. As Malaysia did not recognise refugee status in its
domestic law and was not a party to the Refugee Convention, and the arrangement
was not a legally binding commitment, it was not open to the Minister to conclude
that Malaysia provided the protections referred to in s 198A(3). It was not sufficient
that such protections were likely to be offered in practice if there were no laws in place
to ensure the relevant protection was provided. The Minister therefore did not have
the power to make a declaration under s 198A(3) and therefore there was no power
to remove the plaintiffs under s 198A. As there was no separate power to remove
the plaintiffs under s 198 of the Migration Act, the plaintiffs could not be lawfully
removed from Australia.
(3) Section 6A of the IGOC Act requires the written consent of the Minister before a
minor can be removed from Australia under s 198A (3) of the Migration Act. A determination made by the Minister (or his delegate) that an unaccompanied minor should
be taken to a country declared under s 198A of the Migration Act was not sufficient
to satisfy the requirement for consent in writing. No consent in writing having been
given, the removal of a minor under s 198A of the Migration Act would be unlawful.
Per Gummow, Hayne, Crennan and Bell JJ:
The power to remove an individual under s 198A of the Migration Act is conditional on a
valid declaration having been made under s 198A(3). The matters stated in the criteria in s
198A(3) are jurisdictional facts which must be satisfied before a declaration can validly be
made. It is not sufficient that the Minister thinks or believes the relevant criteria are met
if objectively they are not met.
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8 CHRLD
movement
Per French CJ and Heydon J dissenting:
Whether a declaration is valid under s 198A(3) of the Migration Act did not require there
to be proof that the criteria are satisfied ‘as a matter of fact’. The section required an
evaluative judgment by the Minister of whether the conditions are met by the country in
question.
Per French CJ:
Although the language in s 198A(3) of the Migration Act indicated the need for ministerial evaluative judgment, the mere fact that the Minister makes a declaration is not
enough to secure its validity. He must form such judgment in good faith and upon a
proper construction of the matters set out in s 198A of the Migration Act. A declaration
based on a misconstruction by the Minister of the matters set out in s 198A(3) would be
invalid (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
applied).
Per French CJ and Kiefel J:
While the existence of a relevant legal framework of a country was necessary for the making of a declaration under s 198A of the Migration Act, it would not be sufficient if there
were evidence that the protection offered by a country did not in practice adhere to the
international or domestic legal obligations to which it was bound.
Per Heydon J dissenting:
(1) A declaration under s 198A(3) of the Migration Act could be made if the relevant protections were provided as a matter of fact. There was no need for there to be domestic
legislation or courts of law affording the protection (Patto v Minister for Immigration
and Multicultural Affairs [2000] FCA 1554 and other cases considered). The Minister
did not misinterpret the requirements of s 198A(3) and the declaration in relation to
Malaysia was therefore validly made.
(2) In relation to the argument that the officer who detained the plaintiffs had failed to
consider their individual circumstances in applying s 198A, there was, in fact, no
requirement for the detention officer to consider whether the plaintiffs had committed any offences under Malaysian immigration law. The discretion of the officers had
not been unlawfully fettered by correspondence from the Minister.
(3) The Minister did not fail in his fiduciary duty as guardian under s 6 of the IOGC Act
by failing to consider his powers under ss 46A and 195A of the Migration Act to allow
the plaintiffs to apply for visas, as those provisions were clear that there was no obligation to consider the exercise of those powers.
(4) Although the Minister did not give specific written consent for the removal of M106
under s 6A of the IOGC Act, the Minister had shown by his conduct that he consented
to the removal of M106 from Australia and had signed pieces of paper to that effect.
Further, s 6A(4) of the IOGC Act provides that the section does not affect the operation of any other law regulating the departure of persons from Australia. Section 198A
of the Migration Act is such a provision, and there was nothing to suggest that s 6A of
the IOGC Act could override this.
8 CHRLD
239
movement
(5) There being a right to remove the plaintiffs under s 198A of the Migration Act, there
was no need to consider the alternative argument of whether there was a separate
right to remove the plaintiffs under s 198 of the Migration Act.
for the plaintiffs: d s mortimer sc, r m niall sc, c l lenehan, k l walker, e a
bennett and m l albert; instructed by allens arthur robinson lawyers
for the defendant: s j gageler sc (solicitor-general of the commonwealth), g r
kennett sc, s p donaghue and n m wood; instructed by australian government
solicitor
for the intervener the australian human rights commission (in m106/2011):
d f jackson qc and c j horan; instructed by the australian human rights
commission
[2011] HCA 32
Full text of judgment available at http://www.austlii.edu.au/au/cases/cth/HCA/
2011/32.html
expulsion | children | ministerial consent required |
See Plaintiff M70/2011 v Minister for
Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship
expulsion | refusal to comply | justified by entitlement to seek recovery of prop­
erty first | See liberty & security – Nnamdi v Attorney General
extradition | impact on children | approach to safeguarding interests
HH & ORS V DEPUTY PROSECUTOR OF THE ITALIAN REPUBLIC, GENOA
supreme court
lord hope, lady hale, lord mance, lord judge, lord kerr, lord wilson and lord brown
united kingdom
20 jun 2012
This appeal concerned two cases under the Extradition Act 2003 involving the extradition
of parents with young children.
In one case, an Italian court had issued a European Arrest Warrant (‘EAW’) for a British
mother (HH) and father (PH) who had been convicted in Italy of a series of drug trafficking offences. HH and PH were the parents of three children, X, Y and Z, aged 11, eight
and three respectively. Extradition proceedings began in the UK against HH and PH in
2008. District Judge Evans found that the couple had deliberately fled Italy to escape the
Italian justice system and ordered their extradition in 2010. HH and PH appealed to the
Administrative Court but their appeals were dismissed on 11 May 2011. During the course
of the extradition proceedings in the UK, HH was admitted to a psychiatric unit on three
occasions. PH became the primary carer of the family.
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8 CHRLD
movement
In the other case, a Polish court had issued two EAWs in 2006 and 2007 for a Polish
national (F-K) in relation to offences of dishonesty with a total equivalent value of less than
£6,000 which took place between 1997 and 2001. F-K was the mother to five children,
aged 21, 17, 13, eight and three. A Senior District Judge ordered the extradition of F-K on 28
September 2010. F-K appealed to the Administrative Court but her appeal was dismissed
on 19 January 2012.
The parties appealed, arguing that the rights of their children to private and family life
under Article 8 of the European Convention on Human Rights had not been properly
considered.
The Administrative Court certified the following question: where, in proceedings under
the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants
are arguably engaged, how should their interests be safeguarded, and to what extent, if
at all, is it necessary to modify the approach of Norris v Government of the United States of
America (No. 2) [2010] All ER (D) 256 (Feb) (‘Norris’) in light of ZH (Tanzania) [2011] All
ER (D) 02 (Feb) (‘ZH (Tanzania)’)?
It was held that:
(1)Applying Norris, the question for the court to consider was whether the interference with the private and family lives of the children was outweighed by the public
interest in extraditing their parents. ZH (Tanzania) made clear that in considering
Article 8 in any case in which the rights of a child are involved, the best interests of
the child must be a primary consideration, but not necessarily the primary consideration.
(2) In dismissing the appeals of HH and PH (Lady Hale dissenting in part), the gravity of
the parents’ offending was such that the public interest in ordering their extradition
outweighed the interests of their children under Article 8.
(3) In allowing the appeal of F-K, the offences that F-K had allegedly committed were of
no great gravity and there had been a substantial delay between the alleged commission of the offences and the commencement of extradition proceedings. In light of
the severe damage that would be caused to F-K’s two youngest children, it would be
wholly disproportionate to the public interest to order F-K’s extradition.
Per Lady Hale:
(1) The following conclusions can be drawn from Norris: (1) There may be a closer analogy
between extradition and the domestic criminal process than between extradition and
deportation or expulsion, but the court still has to examine carefully the way in which
it will interfere with family life. (2) There is no test of exceptionality in either context.
(3) The question is always whether the interference with the private and family lives
of the extraditee and other members of his family is outweighed by the public interest
in extradition. (4) There is a constant and weighty public interest in extradition: that
people accused of crimes should be brought to trial; that people convicted of crimes
should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can
flee in the belief that they will not be sent back. (5) That public interest will always carry
8 CHRLD
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movement
great weight, but the weight to be attached to it in the particular case does vary according the nature and seriousness of the crime or crimes involved. (6) The delay since
the crimes were committed may both diminish the weight to be attached to the public
interest and increase the impact upon private and family life. (7) Hence it is likely that
the public interest in extradition will outweigh the Article 8 rights of the family unless
the consequences of the interference with family life will be exceptionally severe.
(2) ZH (Tanzania) made it clear that in considering Article 8 in any case in which the
rights of a child are involved, the best interest of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary
importance.
Per Lord Judge:
(1) It seems improbable that, without doing so expressly and unequivocally, the court
in ZH (Tanzania) intended to or would have modified the way in which Norris
had stated the Article 8 rights of the family of a proposed extraditee should be
approached.
(2) Stripped to essentials ZH (Tanzania) decided that in the context of immigration
control and the entitlement of this country to decide which aliens may reside here,
the Article 8 rights of a child or children should be treated as a primary consideration against which other relevant factors might ‘countervail’, whereas in Norris, in
the context of extradition, it was decided that Article 8 rights might ‘prevail’ notwithstanding the immense weight or ‘imperative which attached to the public interest in
the extradition of those convicted or suspected of having committed offences abroad.
for the appellant hh: alun jones qc and john jones; instructed by wainwright &
cummins llp
for the appellant ph: matthew ryder qc, steven powles and michelle butler;
instructed by wainwright & cummins llp
for the appellant f-k: edward fitzgerald qc and ben cooper; instructed by gt
stewart solicitors
for the respondents: david perry qc and ben lloyd; instructed by crown prosecution service, special crime division extradition unit
for the intervener x, y and z, by the official solicitor, their litigation friend:
hugo keith qc and caoilfhionn gallagher; instructed by maxwell gillott
solicitors
for the intervener coram children’s legal centre: manjit gill qc and james
dixon; instructed by coram children’s legal centre
for the intervener justice: alex bailin qc, mark summers and aaron watkins;
instructed by peters & peters solicitors llp
[2012] UKSC 25, [2012] 3 WLR 90, [2012] 4 All ER 539, [2012] HRLR 25, [2013] 1 AC 338
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2012/25.html
242
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movement
|
political participation
social welfare | residence requirement | limit on period of temporary absence
excessive | See equality – Kong Yunming v The Director of Social Welfare, Yao Man Fai George v The Director of Social
Welfare
1. Section 189(3) provides: ‘If an officer knows or reasonably
suspects that a person (other than a person referred to in
subsection (3A)) in an excised offshore place is an unlawful
non-citizen, the officer must detain the person.’
2. Section 198(2) provides: ‘An officer must remove as soon
as reasonably practicable an unlawful non-citizen: (a) who is
covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph
193(1)(b), (c) or (d); and (b) who has not subsequently been
immigration cleared; and (c) who either: (i) has not made a
valid application for a substantive visa that can be granted
when the applicant is in the migration zone; or (ii) has made
a valid application for a substantive visa, that can be granted
when the applicant is in the migration zone, that has been
finally determined.’
3. Section 198A provides: ‘(1) An officer may take an offshore
entry person from Australia to a country in respect of which
a declaration is in force under subsection (3). (2) The power
under subsection (1) includes the power to do any of the
following things within or outside Australia: (a) place the
person on a vehicle or vessel; (b) restrain the person on a
vehicle or vessel; (c) remove the person from a vehicle or
vessel; (d) use such force as is necessary and reasonable.
(3) The Minister may: (a) declare in writing that a specified
country: (i) provides access, for persons seeking asylum, to
effective procedures for assessing their need for protection;
and (ii) provides protection for persons seeking asylum,
pending determination of their refugee status; and (iii)
provides protection to persons who are given refugee status,
pending their voluntary repatriation to their country of origin
or resettlement in another country; and (iv) meets relevant
human rights standards in providing that protection; and (b)
in writing, revoke a declaration made under paragraph (a).
(4) An offshore entry person who is being dealt with under
this section is taken not to be in immigration detention (as
defined in subsection 5(1)). (5) In this section, officer means
an officer within the meaning of section 5, and includes a
member of the Australian Defence Force.’
4. Section 6 provides: ‘(1) The Minister shall be the
guardian of the person, and of the estate in Australia, of
every non-citizen child who arrives in Australia after the
commencement of this Act to the exclusion of the parents
and every other guardian of the child, and shall have, as
guardian, the same rights, powers, duties, obligations and
liabilities as a natural guardian of the child would have,
until the child reaches the age of 18 years or leaves Australia
permanently, or until the provisions of this Act cease to
apply to and in relation to the child, whichever first happens.
(2) Without limiting the meaning of the expression leaves
Australia permanently in subsection (1), a non-citizen child
leaves Australia permanently if: (a) the child is removed
from Australia under section 198 or 199 of the Migration Act
1958 ; or (b) the child is taken from Australia to a regional
processing country under section 198AD of that Act; or (c)
the child is deported under section 200 of that Act; or (d) the
child is taken to a place outside Australia under paragraph
245F(9)(b) of that Act.’
5. Section 46A provides: ‘(1) An application for a visa is
not a valid application if it is made by an unauthorised
maritime arrival who: (a) is in Australia; and (b) is an
unlawful non-citizen. (2) If the Minister thinks that it is in
the public interest to do so, the Minister may, by written
notice given to an unauthorised maritime arrival, determine
that subsection (1) does not apply to an application by the
unauthorised maritime arrival for a visa of a class specified
in the determination.’
6. Section 195A provides: ‘(1) This section applies to a person
who is in detention under section 189. (2) If the Minister
thinks that it is in the public interest to do so, the Minister
may grant a person to whom this section applies a visa of a
particular class (whether or not the person has applied for
the visa). (3) In exercising the power under subsection (2),
the Minister is not bound by Subdivision AA, AC or AF of
Division 3 of this Part or by the regulations, but is bound
by all other provisions of this Act. (4) The Minister does not
have a duty to consider whether to exercise the power under
subsection (2), whether he or she is requested to do so by any
person, or in any other circumstances.’
7. Section 6A provides: ‘(1) A non-citizen child shall not leave
Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent
unless he or she is satisfied that the granting of the consent
would be prejudicial to the interests of the non-citizen child.
(3) A person shall not aid, abet, counsel or procure a noncitizen child to leave Australia contrary to the provisions of this
section. (4) This section shall not affect the operation of any
other law regulating the departure of persons from Australia.’
Political participation
voting | residency requirement | impact on detained citizens not unjustified
BOULLE V GOVERNMENT OF SEYCHELLES & ANOR
constitutional court
karunakaran acj, renaud and dodin jj
8 CHRLD
the seychelles
12 jul 2011
243
political participation
B petitioned the court to declare: (1) s 51 of the Elections Act Cap 68A (‘the Act’) as unconstitutional to the extent that it only provides for citizens of Seychelles residing in an electoral
district to be entitled to register as voters; (2) s 5(b) of the Act as unconstitutional to the
extent that it states that if a person is detained at the pleasure of the President, he or she
is disqualified from registration and voting; (3) s 5(c) of the Act as unconstitutional to the
extent that when serving a term of imprisonment a citizen of requisite voting age is disqualified from registering as a voter; and (4) s 6(b)2 of the Act as null and void to the extent
that residency criteria for a citizen to register and vote at an election do not exist.
B is a Seychellois over 18 years old and has a right to be registered as a voter under Articles 24(1)
(b)3 and 114 of the Constitution. He is registered as a voter and is entitled under Articles 24(1)
(c) and 51(1)4 of the Constitution to stand as a candidate in a presidential election. B intended
to stand as a candidate for the next presidential election. The right of citizens to vote is also
enshrined in Article 1135 of the Constitution. B claimed that his right to be elected to public
office under Article 24(1)(c) of the Constitution could be violated by consequence of the Act.
The respondents replied that s 5 of the Act is properly drafted and compliant with the
Constitution. The respondents argued that s 5(1)(c) of the Act denies the right to vote to a
person who has been detained after a fair hearing under Article 196 of the Constitution.
A suspected citizen’s right to vote is not guaranteed until they have been found innocent
(Article 114 of the Constitution).
In declaring the Act unconstitutional in ss 5(1)(b) and 6(b) and ordering the Supreme Court
to forward a copy of the judgment to the President of the Republic and the Speaker of the
National Assembly in conformity with Article 130(5)7 of the Constitution, it was held that:
(1) Article 24 of the Constitution is to be read and interpreted in light of Articles 113 and
114 of the Constitution. Article 24 gives a citizen of Seychelles the right to register and
vote in any election or referendum held in Seychelles. Article 113 simply refers to a
citizen of Seychelles who has the right to vote in a particular electoral area in which
the person is already registered. However, there are restrictions which apply to a person who has registered, these could disqualify him or her from being able to vote on
the day of election. These restrictions apply to a person who has ‘infirmity of mind,
criminality or residence outside of Seychelles’ as provided by Article 114.
(2) Section 5 of the Act is not unconstitutional as s 5 of the Act should be interpreted to
require a citizen wishing to register and vote in the Seychelles needing only provide
evidence of a place of abode in the Seychelles.
(3) Section 5 of the Act is not unconstitutional merely because it deprives a citizen from
voting if he or she is not present at the time of preparation of the electoral register. A
citizen of Seychelles may hold dual nationality and exercise their voting rights in both
countries, thus they may have a residence both in Seychelles and outside Seychelles,
as long as the citizen is present in Seychelles three months prior to their seeking to be
registered in order to comply with the Act.
(4) There is an enabling provision to allow citizens to register to vote if at the time of
preparation of the register they do not reside in a particular electoral district. The
court affirms that these rights are guaranteed and that a citizen only has to declare
where he or she lives or is staying in Seychelles in order to be able to register and vote.
244
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political participation
(5) Section 5(1)(b) of the Act is not unconstitutional as far as it disqualifies a citizen from
registering and voting if detained ‘at the pleasure of the President’. However, the
court has urged the Attorney General to have the third occurrence of the word ‘or’
deleted from s 5(1)(b) of the Act, and meanwhile and until it is amended the provision should be read as ‘is under any written law, adjudged or otherwise declared to be
of unsound mind or detained as a criminal lunatic at the pleasure of the President.’
The court is of the view that ‘criminality’ as a ground for disqualification according to
Article 114 of the Constitution is a ‘matter of policy and not necessarily legal in nature’.
However, the court determined that criminality has to be interpreted in the strictest
sense as stated in the Constitution. Article 19(2)(a)8 of the Constitution provides that a
person is innocent until proven guilty in a court of law after due legal process.
(6) Denying the rights of prisoners to vote is not unjustifiable or unreasonable and criminality is a constitutional ground for denying a citizen the right to vote. Criminality is
defined by the Act as applying to a person is serving a sentence of imprisonment of
six months or more as imposed by a court in Seychelles. The court reasoned that such
limitations exist in many countries and it is justified in a democratic society in order to
enhance civil responsibility such as respect for the law, the main purpose of the criminal sanction. The test is one of minimum impairment and proportionality between
the right of a prisoner to vote and the right of society to control criminal actions.
(7) The court is of the view that s 6(b) of the Act is unconstitutional and void in so far as
it stipulates that a person who is detained under any written law is not be entitled to
vote, since this contravenes Article 113 of the Constitution.
(8) The court has declared that B’s right to stand for election for the office is guaranteed
under Article 24(1)(c) of the Constitution and would not be violated by the various
provisions of the Act as mentioned above.
for the petitioner: mr philippe boulle in person
for both respondents: mr ronny govinden
[2011] SCCC 5
Full text of judgment available at http://www.seylii.org/sc/judgment/constitutionalcourt/2011/5
1. Section 5 provides: ‘(1) Every citizen of Seychelles
entitled to be registered as a voter under article 114 of the
Constitution shall, if the citizen resides in an electoral area,
be registered as a voter in that electoral area unless the
citizen: (a) is disqualified from registering as a voter under
this Act or any other written law; (b) is under any written
law, adjudged or otherwise declared to be of unsound mind
or detained as a criminal lunatic or at the pleasure of the
President; (c) is serving a sentence of imprisonment of or
exceeding six months imposed by a court in Seychelles.’
2. Section 6 provides: ‘Every person registered as a voter in
an electoral area is entitled to vote, in accordance with this
8 CHRLD
Act, at an election or at a referendum in the electoral in the
electoral area unless: (a) any circumstances, other than the
fact that the person no longer resides in the electoral area,
have arisen which if the person were not registered as a voter
would cause the person to be disqualified under section
5(1)(a), (b) or (c); (b) the person is serving a sentence of
imprisonment or being detained under any written law.’
3. Article 24 provides: ‘(1) Subject to this Constitution,
every citizen of Seychelles who has attained the age of
eighteen years has a right: (a) to take part in the conduct
of public affairs either directly or through freely chosen
representatives; (b) to be registered as a voter for the purpose
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political participation
|
private life
of and to vote by secret ballot at public elections which shall
be by universal and equal suffrage; (c) to be elected to public;
office; and (d) to participate on general terms and equality, in
public service. (2) the exercise of the rights under clause (1)
may be regulated by law necessary in a democratic society.’
4. Article 51(1) provides: ‘A person is qualified for election as
President if: (a) the person is a citizen of Seychelles; (b) the
person is not disqualified from registration as a voter under
this Constitution.’
5. Article 113 provides: ‘A citizen of Seychelles who is
registered as a voter in an electoral area shall be entitled to
vote, in accordance with law, in the electoral areas: (a) at an
election for the office of President; (b) at an election of the
members of the National Assembly; or (c) in a referendum
held under this Constitution, unless any circumstances have
arisen which, if the citizen were not so registered, would
cause the citizen to be disqualified under an Act made under
article 114(1) on ground (a) or ground (b) of article 114(1).’
6. Article 19 provides: ‘(1) Every person charged with an
offence has the right, unless the charge is withdrawn, to a
fair hearing within a reasonable time by an independent and
impartial court established by law.’
7. Article 130(5) provides: ‘Where the Constitutional Court
makes a declaration under clause 4(b) the Court shall,
subject to any decision in appeal therefrom, send a copy of
the declaration to the President and the Speaker.’
8. Article 19(2) provides: ‘Every person who is charged with
an offence: (a) is innocent until the person is proved or has
pleaded guilty…’
Private life
bodily integrity | paternity test | compulsion justified for furtherance of fam­ily
values | See family life – Dlamini v Dlamini & Anor
detention | prison conditions | sanitation | requirement to empty chemical toilet
objectionable | See cruel, inhuman or degrading treatment – Greens & Ors, Re Application
for Judicial Review
medical records | disclosure | justified by perceived threat to the safety of oth­
ers that was serious and imminent
DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V HENDERSON
human rights review tribunal
hindle, grant and shirley
new zealand
12 jan 2011
C, a former drug user, attended a clinic for treatment of a back injury sustained at work.
Noting a ‘drug alert’ on C’s record and her request for specific drugs for her injury, the
doctor considered that C was displaying drug-seeking behaviour and refused to give C
the specific medication she requested. C was dissatisfied with the treatment she received
and wrote a letter of complaint that was received by the clinic’s complaint officer, H, also
a doctor. In the course of making enquiries and investigating C’s complaint, H came to
understand that C, inter alia, was a drug user in a methadone replacement programme,
had two previous convictions concerning drugs, was suspected of raiding pharmacies and
surgeries to obtain drugs and was well known to the police as part of the local drugs scene.
H also discovered that C worked at a nursing home. Concerned with the risk that C could
present to the occupants of the nursing home, H disclosed his information on C to staff
at the nursing home.
D brought a claim under the Privacy Act 1993, alleging that H’s disclosure was made in
breach of Rule 11 of the Health Information Privacy Code (‘the Code’) and had interfered
with C’s privacy.
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private life
In dismissing the claim (Grant dissenting), it was held that:
(1) Rule 11 of the Code prevents disclosure of health information unless the disclosure is
authorised by the individual concerned or an exception applies.
(2) The exception under paragraph 2(d) of Rule 11 of the Code allows disclosure where a
health agency believes on reasonable grounds that (a) it is not desirable or practicable
to obtain authorisation from the individual concerned, and (b) the disclosure of the
information is necessary to prevent or lessen a serious and imminent threat to public
health or public safety or the life or health of the individual concerned or another
individual. Disclosure is permitted only to the extent necessary for the particular
purpose.
(3) The question of whether a discloser ‘believes on reasonable grounds’ must be objectively judged on the basis of the information that the discloser has when s/he makes
the disclosure and the circumstances that apply at that time.
(4) In the context of the second limb of the exception, ‘imminent’ conveys a sense of
something which is about to happen, which is threatened or impending or is something that is near at hand but does not necessarily require proof that something is
critically urgent or in the nature of an immediate emergency.
(5) Based on the combination of information held by H on C and the surrounding circumstances, H’s disclosure – although not free from criticism – satisfied both limbs
of the exclusion and was found to have been done only to the extent necessary.
for the plaintiff: mr r stevens
for the defendant: mr c hodson qc and ms r scott
[2011] NZHRRT 1
Full text of judgment available at http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/
NZHRRT/2011/1.html
medical treatment | dignity | replacing night-time carer with incontinence pads
acceptable | See health – R (On the Application of Mcdonald) v Royal Borough of Kensington and Chelsea
medical treatment | force feeding | justified where capacity impaired and in
patient’s best interests | See life – Re E (Medical Treatment: Anorexia)
medical treatment | right to refuse | capacity to decide must be established
IN RE EFIGENIA SEMENTE; SEMENTE V CHINGUFO
high court
parker aj
8 CHRLD
namibia
25 sep 2012
247
private life
S, an adult and a Jehovah’s Witness, needed a blood transfusion after a Caesarean section
and an operation to remove her uterus, but gave the doctor a copy of a ‘Durable Power Of
Attorney For Health’ indicating that she did not want one. On behalf of her family, her
brother C then obtained an order appointing him her curator with powers to instruct medical practitioners to render appropriate medical treatment and to consent on her behalf to
medical procedures (including blood transfusions).
S sought a rescission and the setting aside of that order with costs on the basis that the
order was erroneously sought or erroneously granted. C moved to reject the rescission
application and brought a counter-application for relief. C’s evidence consisted of affidavits from himself, Dr B (the doctor treating S) and Professor Dr P. S relied on an affidavit
from another doctor, Dr S.
In dismissing the rescission application, it was held that:
(1) While personal autonomy is protected under Articles 7 and 8 of the Constitution,
just because adults have the right to choose, it does not follow that they have in fact
exercised that right. As per Lord Donaldson of Lymington MR in Re T (Adult: refusal of
medical treatment) (1992) 4 ALL ER 649 (CA) at 661f-g, ‘the right to decide one’s own
fate presupposes a capacity to do so’.
(2) Dr S’s affidavit is not admissible as evidence on the grounds that Dr S was not involved
in treating S, as he had not sought the permission of Dr B to examine her while
she was under his care. To accept his evidence would therefore amount to ‘judicial
encouragement of unethical behaviour in the medical profession and [would] bring
the administration of justice into disrepute’.
(3) Dr B’s evidence on behalf of C that S’s low blood count had led to a lack of oxygen to
the brain was cogent, credible and relevant. S was therefore not compos mentis.
(4) The first order had not therefore been erroneously sought or erroneously granted and
the court had been entitled to grant it in C’s favour.
(5) S’s rescission application should therefore be dismissed. Dr B, or any other suitable
medical practitioner as directed by Dr B, or any other doctor in accordance with
the practice at the Medi Clinic Hospital, Windhoek, should be authorised to render
appropriate medical treatment or medical procedures (including blood transfusions)
to S.
(6) S should pay the costs of the rescission application.
for the appellant: r heathcote sc with a denk (replaced by r rukoro); instructed
by lorentzangula inc, windhoek
for the respondent: a corbett; instructed by du plessis, roux, de wet attorneys,
windhoek
[2012] NAHC 247
Full text of judgment: http://www.saflii.org/na/cases/NAHC/2012/247.html
248
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private life
personal communications data | insufficient protection in service provider’s
licence
KIMU V ACCESS MALAWI LIMITED & ORS
high court (commercial division)
chipoka j
malawi
5 may 2012
AML & Ors were telecommunications providers whose licences and service contracts
contained a clause which guaranteed the privacy and confidentiality of their customers’
communications. AML & Ors were regulated by the Malawi Communications Regulatory
Authority (‘MACRA’). In late 2010, MACRA requested that AML & Ors provide detailed
communication information about their customers. As a result, AML & Ors issued a statement to their customers stating that they would no longer be able ‘to safeguard the privacy
and confidentiality of customers’ communication activities’.
K was a subscriber to AML & Ors. In response to AML & Ors’ revocation of their privacy
guarantee, K brought an action on 18 October 2011 seeking an interlocutory injunction
restraining AML & Ors, their staff and agents from disclosing the information MACRA
had requested. The injunction was granted.
The case required determination of two substantive issues: (1) whether K was entitled to
have his right to privacy safeguarded by AML & Ors under the Constitution1 and AML &
Ors’ individual telecommunications licences; and (2) whether AML & Ors would be in
breach of or violating K’s right to privacy if they were to comply with the directive from
MACRA.
K sought a declaration of affirmation in each case and an injunction to prevent AML & Ors
from complying with MACRA’s request.
In granting all three orders, it was held that:
(1) K had a fundamental right to privacy under s 212 of the Constitution. This right
includes the right not to be subjected to interference with private communications,
including all telecommunications. This right is reinforced by the Communications
Act 1998 (which licenses all telecommunications providers) and is incorporated into
AML & Ors’ licences and their service contracts.
(2) Sections 44(1) and 44(2)3 of the Constitution provide that the right to privacy is subject
to lawful limitations, determined by the following test: (a) the limitation is prescribed
by law; (b) the limitation is reasonable; (c) the limitation is recognised by international human rights standards; and (d) the limitation is necessary in an open and
democratic society. This test is supplemented by the principle of proportionality: that
the limitation should be proportional to the good sought to be achieved by limiting a
constitutionally guaranteed right (Maggie Kaunda v R (High Court Mzuzu Registry,
Criminal Appeal Number 8 of 2001, unreported) applied).
(3) The ‘call detail records’ (‘CDRs’) requested from AML & Ors by MACRA comprise
information such as identity of caller and receiver, duration of call, location of call,
type of handset etc. This is highly sensitive and personal information which should
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249
private life
only be disclosed with the owners’ permission. Any unlimited disclosure presents a
prima facie case of a breach of the constitutional right to privacy.
(4) The disclosure of the CDRs cannot be justified as a lawful limitation as it fails the
s 44 test above. Compliance with an industry regulator’s directive does not constitute a limitation prescribed by law. In this instance, no legislation exists to allow
AML & Ors to limit the right to privacy, and an open democratic society which
meets international human rights standards cannot justify blanket disclosure of
CDRs.
(5) The caveats in AML & Ors’ licences which allow disclosure of private telecommunication data also fail the s 44 test due to disproportionality as the limitation is not deemed
to be reasonable or necessary in an open and democratic society. The licence caveats
exist to allow court-authorised access to CDRs in individual cases, rather than ‘blanket
access’ without cause.
(6) The disclosure of the CDRs gives rise to concerns about possible abuse of such information by MACRA.
for the plaintiff: mr kasambara
for the first, second, third and fourth defendants: mr likongwe
[2012] MWHCCOMM 3
Full text of judgment available at http://www.malawilii.org/mw/judgment/high-courtcommerical-division/2012/3
sexuality | gender reassignment | inability to marry under new gender identity
not unconstitutional
W V REGISTRAR OF MARRIAGES
court of appeal
tang vp, hartmann and fok jja
hong kong
25 nov 2011
W is a post-operative transsexual woman, who wishes to marry her male partner. The
Registrar of Marriages (‘the RM’) construed the Marriage Ordinance Cap. 179 (‘the MO’)
as not permitting such a marriage. W challenges the RM’s construction of the relevant
provisions in the MO. Alternatively, W says that the provisions, if construed correctly by
the RM, are unconstitutional, being in breach of various Articles of the Basic Law (‘the
BL’), the Hong Kong Bill of Rights (‘the HKBOR’) and the International Covenant on Civil
and Political Rights (‘the ICCPR’).
Judicial review proceedings were dismissed by Hong Kong Court 359 and W appealed to
the Court of Appeal.
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private life
In dismissing the appeal, it was held that:
Per Fok JA (Tang VP and Hartmann JA concurring):
(1) The relevant provisions of the MO were correctly construed by the RM. In determining the meaning of ‘man’ and ‘woman’ in the context of the right to marry under the
constitutional provisions, the Corbett criteria (established by Ormrod J in Corbett v
Corbett (otherwise Ashley) 1971 P 83) should be adopted and act as the starting point for
the context in which the words ‘woman’ and ‘female’ fall to be construed.
(2) The decision in Corbett was adopted in the MO in 1972, and was not intended to
include a transsexual woman or man in the meaning of the words ‘man’ and ‘woman’.
An updated interpretation of the legislation is not needed because the essential nature
of marriage requires a partnership between two persons of the opposite sex, with the
procreation of children remaining as one of its purposes and attributes.
(3) The relevant provisions of the MO, when construed correctly, are not unconstitutional. The appellant said it is artificial for the respondent to claim that her right
to marry has not been interfered with because she can marry her biological sex. In
interpreting Goodwin v United Kingdom (2002) 35 EHRR 18, she could claim that her
right to marry had been infringed. In Goodwin it was decided that the right to marry
pursuant to Article 12 of the European Convention on Human Rights (‘the ECHR’)
was not defined by reference to the purely biological criteria and therefore extended to
permit a post-operative male-to-female transsexual to marry in her assigned gender.
However, whether her right was infringed or not depended on the nature of the right.
(4) Goodwin is significant because previous challenges to the application of the Corbett
criteria and the resulting non-recognition of a change of sex by a post-operative transsexual had led to decisions of the ECHR confirming that the United Kingdom’s
application of Corbett did not breach Article 8 or Article 12 of the ECHR. The ECHR
held that the non-recognition of a change of sex by a post-operative transsexual lay
within a contracting state’s margin of appreciation. The margin of appreciation was
not relevant in this instance because the court sat to determine whether the challenged provisions are or are not consistent with the relevant constitutional provisions.
(5) With regard to Article 8 of the ECHR, regarding the right to privacy, the court in
Goodwin was not satisfied that the trends in a comparative study submitted by Liberty
were sufficient to establish the existence of any common European approach to the
problems created by the recognition in law of post-operative gender status. The court
noted that the survey did not indicate that there was a common approach as to how to
address the repercussions which the legal recognition of a change of sex might entail
for other areas of law.
(6) In considering the meaning of the word ‘marriage’ in BL37, the right to marry is to
another person of the opposite biological sex. It is understood that the ICCPR definition of ‘men’ and ‘women’ do not include post-operative transsexuals. The court
agreed with this.
(7) With regard to whether there is an international consensus that post-operative transsexuals should be able to marry their chosen partners, the judge assessed that there is
8 CHRLD
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private life
no evidence of societal consensus in Hong Kong under the constitutional right BL37
or HKBOR19(2) to move away from the proper construction of the word ‘marriage’
that the constitutional right is to marry a person of the opposite biological sex. There
is material evidence to support changing societal attitudes in a number of countries,
such as the 54 per cent of member states of the European Union that permit marriage
in a new gender. However, there is no evidence of any consensus or majority of understanding or practice among the 167 states of the ICCPR.
(8) There is no evidence of any decision by the United Nations Human Rights Committee
interpreting the ICCPR as requiring that transsexuals should be permitted to marry in
their post-operative state.
(9) The appellant argued that the failure to provide for some form of civil union, as an
alternative to marriage, infringed her right to privacy, encompassing her right to
establish and develop relationships with other human beings.
(10)This was flawed because the consequence of the RM’s decision under the challenge is
that the appellant cannot marry her partner, not that she cannot maintain and develop
her relationship.
(11) Also, the complaint that the appellant cannot enter a formal relationship with her
male partner is a complaint of failure to provide for same-sex marriage. However, the
appellant did not want to advance this.
(12) The right to privacy does not add anything to her constitutional challenge based on the
right to marry as the ECHR should be read as a whole. Since Article 12 of the ECHR
did not impose an obligation on contracting states to grant same-sex couples access
to marriage, Article 12 taken in conjunction with Article 8 ECHR could not be interpreted as imposing an obligation either.
(13)The provisions of the MO were properly construed and are not inconsistent with
BL37, HKBOR19(2) or ICCPR23(2), nor do they infringe the right to privacy under
HKBOR14 or ICCPR17.
Observations:
The Court attached less importance to the lack of evidence of a common European
approach to the resolution of the legal and practical problems posed, than to the clear and
uncontested evidence of a continuing international trend in favour not only of increased
social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals.
There is hope that this case would act as a catalyst for the Government to conduct public
consultation on gender identity, sexual orientation and specific problems facing transsexuals such as their right to marry.
for the appellant: mr philip dykes sc, mr hectar pun and mr earl deng; instructed
by messers vidler & co (assigned by the director of legal aid)
for the respondent: ms monica carss-frisk qc, ms lisa k y wong sc and mr stewart
k m wong sc; instructed by the department of justice
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private life
|
property
for the intervener the international commission of jurists: written submissions
only
[2011] hkca 442, [2012] 1 hkc 88
Full text of judgment available at http://www.hklii.org/eng/hk/cases/hkca/2011/442.html
Editor’s note: The case was appealed to the Court of Final Appeal which reversed this judg­
ment and granted the right for transgendered people to marry in their acquired sex rather
than their biological sex at birth (W v the Registrar of Marriages [2013] HKCFA 39).
sexuality | gender reassignment | legal recognition | required without under­
going complete surgery | See sexuality – AB v Western Australia; AH v Western Australia
1. The Constitution of the Republic of Malawi, enacted by s 3
of the Republic of Malawi (Constitution) Act, 1994.
2. Section 21 provides: ‘Every person shall have the right
to personal privacy, which shall include the right not to
be subject to: (a) searches of his or her person, home or
property; (b) the seizure of private possessions; or (c)
interference with private communications, including mail
and all forms of telecommunications.’
3. Section 44 provides: ‘(1) There shall be no derogation,
restrictions or limitation with regard to: (a) the right to
life; (b) the prohibition of torture and cruel, inhuman or
degrading treatment or punishment; (c) the prohibition of
genocide; (d) the prohibition of slavery, the slave trade and
slave-like practices; (e) the prohibition of imprisonment for
failure to meet contractual obligations; (f) the prohibition
on retrospective criminalization and the retrospective
imposition of greater penalties for criminal acts; (g) the
right to equality and recognition before the law; (h) the
right to freedom of conscience, belief, thought and religion
and to academic freedom; or (i) the right to habeas corpus.
(2) Without prejudice to subsection (1), no restrictions or
limitations may be placed on the exercise of any rights and
freedoms provided for in this Constitution other than those
prescribed by law, which are reasonable, recognized by
international human rights standards and necessary in an
open and democratic society.’
Property
deprivation | bar on eviction | requirement that it be just and equitable not
objectionable | See housing – City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (pty)
Ltd & Anor
inheritance | child | wife’s consent to adoption not established
GHISALAL V DHAPUBAI (D) BY LRS
supreme court
singhvi and ganguly jj
india
12 jan 2011
G was given up for adoption by K, his father, to GO and his wife D. The registered deed
of adoption was executed by K and GO. GO inherited agricultural lands in three villages,
8 CHRLD
253
property
a two-storey house and a courtyard from his father. After the adoption, G became coparcener in the family, requiring him to share equally with others in the inheritance of the
estate or have an acquired right in the properties. GO executed three gift deeds whereby
he transferred lands to his wife D. D sold a portion of land to S. G pleaded that the gift
deeds executed by GO in favour of D were fraudulent and were intended to deprive him
of his right in the ancestral properties and that, even in his capacity as karta of the family,
GO could not have gifted more than one third of his share. G sought that a decree of partition be passed and he be given a half share in the properties and that GO be directed to
account for G’s share of the agricultural produce. GO pleaded that he had not adopted G
and that no ceremony was performed; the adoption deed was fraudulent and therefore not
binding. Furthermore, GO argued that the properties were not ancestral and that he was
entitled to execute gift deeds in favour of his wife. D claimed that she had not consented
to the adoption of G by GO and denies valid adoption had taken place. D further argued
that the gift deeds were valid and that G has no right to challenge the alienation of property
by her husband.
The trial court held that: (1) the properties were ancestral properties of GO; (2) G was
the validly adopted son of GO and the consent of D can be presumed from her presence
in the adoption ceremonies; (3) the gift deeds in favour of D and the sale deed executed
by D were invalid; (4) the will executed by GO in favour of D was invalid; and (5) a gift
deed dated 29 November 1944 executed by GO in favour of D was not valid in as much
as there was no acceptance by the donee and alienation of ancestral property by GO in
favour of his wife was not for a pious purpose. D filed an appeal against the judgment
of the trial court. The lower appellate court dismissed her appeal on points (1), (2) and
(3) but overturned the trial court’s decision on points (4) and (5), finding that the will
and the gift deed dated 29 November 1944 were valid. The lower appellate court also
decreed that G was entitled to a one third share in the suit properties but not to the land
covered by the gift deed dated 29 November 1944. It was further directed that the land
owned by GO located in the village of Kuchrod be given to G to satisfy his one third
entitlement.
G and D sought to challenge the judgment of the lower appellate court by filing a second
appeal.
The High Court held that: (1) the two lower courts were correct in relation to the validity of
G’s adoption and the validity of the gift deed dated 29 November 1944; (2) GO’s will was
not validly executed; (3) the lower appellate court’s direction that G be given the whole of
the land in Kuchrod was incorrect; (4) each party is entitled to a half share in the lands
subject to the dispute, excluding that part validly gifted to D under the gift deed dated 29
November 1944; (5) the land sold by D was to be included in the hotchpot; and (6) that S
be given 0.375 hectares of D’s share of the land that was subject of the sale, or such other
proportion as directed by the collector on application by the parties, or (in relation to the
partition of the house) as directed by the trial court upon application by the parties for the
appointment of a commissioner.
In setting aside the judgments of the lower courts, the Supreme Court held that:
(1) Taking a purposive view of the legislation, a wife’s ‘consent’ within the meaning of
s 71 of the Hindu Adoptions and Maintenance Act 1956 can be proved by adducing
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property
|
refugees
written evidence of her consent or by showing that the wife actively participated in
the ceremonies of adoption with an affirmative mind-set to support her husband in
the adoption (Kashibai v Parwatibai [1995] INSC 528; (1995) 6 SCC 213 and Brajendra
Singh v State of M.P (2008) 13 SCC 161 considered).
(2) The presence of a wife as a spectator to the ceremonies of adoption cannot be treated
as consent. In other words, the court cannot presume the consent of a wife simply
because she was present at the time of adoption. A wife’s silence or lack of protest
cannot give rise to an inference of consent to the adoption.
(3) The suit filed by G for grant of a decree that he is entitled to a one half share in the properties of GO is not maintainable and the findings recorded by the trial court, the lower
appellate court and/or the High Court on the validity of gift deeds dated 29 November
1944 and 22 October 1966, the will dated 27 October 1975 executed by GO in favour of D
and the sale deed dated 19 January 1973 executed by her in favour of S are liable to be set
aside.
for the appellants: puneet jain
for the respondents: nikhil majithia
[2011] INSC 37
Full text of judgment available at http://www.liiofindia.org/in/cases/cen/INSC/2011/37.
html
inheritance | intestacy | recognition of woman-to-woman marriage | surviving
wife could claim | See women – Katam v Chepkwony & Anor
inheritance | women | intestate estate | marital status of claimant not relevant |
See women – Samson Kiogora Rukunga v Zipporah Gaiti Rukunga
1. Section 7 provides: ‘Capacity of a male Hindu to take in
adoption. Any male Hindu who is of sound mind and is
not a minor has the capacity to take a son or a daughter in
adoption. Provided that, if he has a wife living, he shall not
adopt except with the consent of his wife unless the wife has
completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind. Explanation: If a person
has more than one wife living at the time of adoption, the
consent of all the wives is necessary unless the consent
of any one of them is unnecessary for any of the reasons
specified in the preceding proviso.’
Refugees
asylum-seeker | expulsion | failure to assess claim | ministerial authorisation
invalid | See movement – Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v
Minister for Immigration and Citizenship
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religion
Religion
education | children | mandatory religious and moral instruction | no indoctr­
ination involved
SL V COMMISSION SCOLAIRE DES CHENES
supreme court
mclachlin cj, binnie, lebel, deschamps, fish,
abella, charron, rothstein and cromwell jj
canada
17 feb 2012
In 2008 the Ethics and Religious Culture Program (‘the ERC Program’) became mandatory in Quebec schools, replacing Catholic and Protestant programs based on religious and
moral instruction. The appellants, L and J, requested that the school board exempt their
children from the ERC Program on grounds of potential serious harm to their children
within the meaning of s 222 of the Education Act. The director of educational resources for
young students denied these exemptions. L and J requested that the school board’s council
of commissioners reconsider the director’s decision, and the council of commissioners
upheld this decision. Consequently, L and J turned to the Superior Court seeking both: (1) a
declaration that the ERC Program infringed their and their children’s rights to freedom of
conscience and religion protected by s 2(a) of the Canadian Charter of Rights and Freedoms
(‘the Charter’) and s 3 of the Quebec Charter of human rights and freedoms, R.S.Q., c. C–12
(‘the Quebec Charter’); and (2) a judicial review of the decisions denying their requests for
exemption from the ERC Program. The Superior Court dismissed both motions for declaratory judgment and judicial review. As a result of motions brought by the school board and
the Attorney General of Quebec to dismiss the appeal, the Court of Appeal refused to hear
L and J’s appeal as of right and also dismissed their motion for leave to appeal.
In dismissing the appeal, it was held that:
Per Deschamps J (McLachlin CJ, Binnie, Abella, Charron, Rothstein and Cromwell JJ concurring):
(1) The appeal must be considered in a wider context and, given the religious diversity
of Quebec at present, the State can no longer promote a vision of society in public
schools that is based on historically dominant religions. The 2001 Census of Canada
listed approximately 95 religious groups that were large enough to be considered separate religious institutions for the purposes of statistical records. An infringement of
a person’s right to freedom of religion cannot be established without objective proof
of an interference with that practice.
(2) There was no error in the Superior Court’s analysis which concluded that the objective
presentation of various religions to children did not put them ‘in an obligatory and
coercive situation’. Having adopted a policy of neutrality, the Quebec Government
cannot set up an education system that favours or hinders any one religion or a particular vision of religion. Nevertheless, it is up to the Government to choose educational
256
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religion
programmes within its constitutional framework. In light of this context, it cannot
be concluded that exposing children to ‘a comprehensive presentation of various religions without forcing the children to join them’ constitutes in itself an indoctrination
of students that would infringe the appellants’ freedom of religion.
(3) The appeal had become moot, given that the appellants’ two children were no longer
obliged to take part in the ERC Program.
(4) Religious neutrality is perceived by many Western states as a legitimate means of creating a free space in which citizens can exercise their individual rights relating to their
religious beliefs (see J Woehrling, ‘La place de la religion dans les écoles publiques
du Québec’ (2007), 41 R.J.T. 651; D Grimm, ‘Conflicts Between General Laws and
Religious Norms’ (2009), 30 Cardozo L Rev 2369).
(5)In R v Big M Drug Mart Ltd 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, this court
held that the Lord’s Day Act, R.S.C. 1970, c. L–13, whose acknowledged purpose was
the compulsion of religious observance on Sunday, infringed the freedom of religion of non-Christians. Dickson J (as he then was) concluded that the ‘protection of
one religion and the concomitant non-protection of others imports disparate impact
destructive of the religious freedom of the collectivity’.
(6)In Canadian Civil Liberties Assn v Ontario (Minister of Education) (1990) 71 O.R. (2d)
341, the Ontario Court of Appeal considered a regulation that made religious education a compulsory part of the public school curriculum. The court held unanimously
that the purpose and effect of the regulation was to provide for religious indoctrination, which the Canadian Charter does not authorise. Such indoctrination was not
rationally connected to the educational objective of inculcating proper moral standards in elementary school students. The Court of Appeal noted that a program which
taught about religion and moral values without indoctrination in a particular faith
would not breach the Canadian Charter.
(7) The principal argument that emerges from the reasons put forward by the appellants
in their requests for an exemption from the ERC Program is that they believe their
obligation to pass on their faith to their children has been interfered with. In this
regard, the freedom of religion asserted by the appellants is their own freedom and
not that of their children. The underlying theme that runs through the appellants’
objections is that the ERC Program is not in fact neutral. According to the appellants,
students following the ERC Program would be exposed to a form of relativism, which
would interfere with the appellants’ ability to pass their own faith onto their children.
(8) In analysing infringements of rights protected by the Charters, this court has often
repeated that no right is absolute (Thomson Newspapers Ltd v Canada (Director of
Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135
(SCC), [1990] 1 S.C.R. 425, at p596). ‘This is so because we live in a society of individuals in which we must always take the rights of others into account’ (Syndicat Northcrest
v Amselem, 2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551, at para 61).
(9) The ERC Program has two components: ethics and religious culture. Its purpose is
set out in the preamble found in each of the documents entitled ‘Ethics and Religious
Culture’ prepared by the Ministère (online), one for the elementary level1 and the other for
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religion
the secondary level.2 Thus the Ministère’s formal purpose does not appear to have been to
transmit a philosophy based on relativism or to influence young people’s specific beliefs.
(10)Parents are free to pass their personal beliefs onto their children if they so wish.
However, the early exposure of children to realities that differ from those in their
immediate family environment is a fact of life. The suggestion that exposing children
to a variety of religious facts infringes their religious freedom, or that of their parents,
amounts to a rejection of the multicultural reality of Canadian society and ignores the
Quebec Government’s obligations with regard to public education. Although such
exposure can be a source of friction, it does not in itself constitute an infringement of
s 2(a) of the Canadian Charter or of s 3 of the Quebec Charter.
(11) The appellants have not proven that the ERC Program infringed their freedom of religion. Therefore, the trial judge did not err in holding that the school board’s refusal to
exempt their children from the ERC Program did not violate their constitutional right.
The Court of Appeal was therefore right to uphold the conclusions of the Superior
Court. For these reasons, the appeal is dismissed with costs.
Per LeBel J concurring (Fish J concurring):
(1) The court is not convinced that the trial judge adhered to the analytical approach first
established by this court in Syndicat Northcrest v Amselem (above), a case involving the
application of s 3 of the Quebec Charter. The Superior Court turned this matter into a
debate about the incorrect nature of the parents’ belief. The trial judge acknowledged
that the parents were Catholics and that they believed they had an obligation to pass on
their faith to their children. Having reached that stage, he did not consider the program’s
content or its impact on the alleged belief. In substance, he held instead that the parents
were wrong to believe that the program’s objectives interfered with the fulfilment of their
religious obligations toward their children. He relied mainly on the opinion of a theologian who served as an expert for the respondents and on the fact that the Assemblée des
évêques catholiques du Québec was not opposed to the objectives of the ERC Program. The
trial judge should have endeavoured to consider in more concrete terms the programme’s
content and the impact claimed, correctly or not, by the appellants on the fulfilment of
their religious obligations. There is no doubt that the appellants bore the burden of proof
at this stage of the constitutional analysis and it was not enough to express disagreement
with the programme and its objectives. Despite being sincerely held, their opinion that
basic moral relativism was the programme’s essential characteristic was not sufficient to
establish a violation of the Canadian Charter or the Quebec Charter.
(2) One of the problems that arises in this matter is determining whether the ERC
Program is consistent with Quebec’s constitutional obligations relating to freedom
of religion. First, a finding of a violation of the two Charters cannot be based solely
on a subjective perception of the ERC Program’s impact. Moreover, the programme’s
framework and the content of the educational and administrative framework do not
make it easy to assess the programme’s concrete impact in the daily workings of
Quebec’s public school system.
(3) In the modern Canadian political system, the State in principle takes a position of
neutrality and it is barred from enacting private legislation that favours one religion
258
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religion
over another (R v Big M Drug Mart Ltd 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at
p351, per Dickson J (as he then was)). In a diverse country like Canada, such a position has become essential to preserving the constitutional freedom to believe or not
believe and to express one’s beliefs (Congrégation des témoins de Jéhovah de St-JérômeLafontaine v Lafontaine (Village) 2004 SCC 48 (CanLII), [2004] 2 S.C.R. 650). Under
the constitutional principles governing State action, the State has neither an obligation to promote religious faith nor a right to discourage religious faith in its public
education system. Only such true neutrality is in keeping with the secularism of the
State (J Woehrling, ‘Les principes régissant la place de la religion dans les écoles publiques du Québec’, in M Jézéquel (ed), ‘Les accommodements raisonnables: quoi,
comment, jusqu’où? Des outils pour tous’ (2007), 215, p220).
(4) This conclusion results from the nature of the administrative document prepared by
the Ministère to explain the programme’s general content, objectives and methods. In
fact, that document in its current form says little about the actual content of the teaching and the approach that teachers will actually take in dealing with their students. It
determines neither the content of the textbooks or educational materials to be used,
nor their approach to religious facts or to the relationship between religious values
and the ethical choices open to students. The ERC Program is made up of general
statements, diagrams, descriptions of objectives and competencies to be developed as
well as various recommendations for the programme’s implementation. Even after a
careful reading, it is not really possible to assess what the programme’s implementation will actually mean. As a result, it is hard to tell what emphasis the programme
will place on Quebec’s religious heritage and on the cultural and historical importance
of Catholicism and Protestantism in that province.
(5) The court is unable to decide whether or not the programme and its implementation
might, in the future, infringe the rights granted to the appellants and persons in the
same situation.
(6) Unless the evidence is that that any exposure of children to realities that differ from
those in their immediate family environment in practice violate freedom of religion,
the court cannot conclude that the appellants have proved their case and the court
dismisses the appeal but without costs.
for the appellants: mark phillips and guy pratte; instructed by borden ladner
gervais, montréal
for the respondent commission scolaire des chênes: bernard jacob, rené lapointe
and mélanie charest; instructed by morency société d’avocats, québec
for the respondent the attorney general of quebec: benoît boucher, amélie
pelletier-desrosiers and caroline renaud; instructed by bernard, roy & associés,
montréal
for the intervener the christian legal fellowship: robert e reynolds and ruth
ross; instructed by robert e reynolds, montréal
for the intervener the canadian civil liberties association: jean-philippe groleau, guy du pont and léon h moubayed; instructed by davies ward phillips &
vineberg, montréal
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religion
|
remedies
for the intervener coalition pour la liberté en éducation: jean-pierre bélisle;
instructed by jean-pierre bélisle, saint-joseph-du-lac, quebec
for the intervener the evangelical fellowship of canada: albertos polizogopoulos,
don hutchinson and faye sonier; instructed by vincent dagenais gibson, ottawa
for the intervener regroupement chrétien pour le droit parental en éducation:
jean-yves côté; instructed by côté avocats inc., sainte-julie, quebec
for the interveners the canadian council of christian charities and the canadian catholic school trustees’ association: iain t benson; instructed by miller
thomson, toronto
for the intervener fédération des commissions scolaires du québec: written
submissions only by alain guimont; instructed by guimont, tremblay, avocats,
québec
2012 SCC 7, [2012] 1 SCR 235
Full text of judgment available at http://www.canlii.org/en/ca/scc/doc/2012/2012scc7/
2012scc7.html
1. ‘For the purposes of this program, instruction in ethics is
aimed at developing an understanding of ethical questions
that allows students to make judicious choices based on
knowledge of the values and references present in society. The
objective is not to propose or impose moral rules, nor to study
philosophical doctrines and systems in an exhaustive manner.’
2. ‘Instruction in religious culture, for its part, is aimed at
fostering an understanding of several religious traditions
whose influence has been felt and is still felt in our society
today. In this regard, emphasis will be placed on Québec’s
religious heritage. The historical and cultural importance
of Catholicism and Protestantism will be given particular
prominence. The goal is neither to accompany students
in a spiritual quest, nor to present the history of doctrines
and religions, nor to promote some new common religious
doctrine aimed at replacing specific beliefs.’
Remedies
damages | assault, false imprisonment and malicious prosecution | approach to
assessment | See liberty & security – Razack Mohammed v Attorney General & Anor
damages | detention | approach to assessment
KELVIN SINGH V ATTORNEY GENERAL
high court
alexander j
trinidad & tobago
28 feb 2012
KS was convicted and sentenced to six years’ imprisonment by a Magistrates Court on
9 May 2001. KS sought to appeal his sentence. However, the prison authorities failed to
deliver the notice of appeal within the statutory period imposed by s 130(2) of the Summary
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remedies
Courts Act 4:20. As a result of this delay, the Court of Appeal declared KS’s appeal against
the sentence to be a nullity.
KS claimed that the failure of the prison authorities to deliver the notice on time was
unconstitutional and in breach of his fundamental rights to liberty as guaranteed under
ss 4(a), 4(b) and 5(2)h of the Constitution. The claim was upheld in a consent order dated
23 November 2009 by Tiwary-Reddy J, under which it was determined that monetary
compensation be paid to KS for the unconstitutional action and for all damages and consequential loss suffered by KS as a result thereof.
The question facing the High Court in this case was how the quantum of damages payable
to KS for breach of his constitutional right to liberty was to be assessed. KS submitted that
he was entitled to damages for breach of constitutional rights simpliciter, loss of chance (to
be assessed on the basis of the prospect of success of the original claim), and loss of liberty
and other direct consequential loss.
The Attorney General, however, submitted that KS had previous convictions and was no
stranger to prison life; that there was no evidence that KS’s sentence would have been
reduced by the court of appeal; and that there was no evidence of distress or inconvenience
suffered by KS as a result of the inaction of the prison authorities, apart from that directly
related to the loss of opportunity to pursue his appeal.
In accepting the submissions of KS, it was held that:
(1) At the time of sentencing, the six year sentence given by the magistrate was in
breach of s 72 of the Summary Courts Act 4:20, which imposed a three-year limit
on the aggregate term of imprisonment that could be ordered by a magistrate.
Therefore, contrary to the Attorney General’s arguments, there is sufficient evidence to suggest that had the appeal been heard, KS would have stood a good
chance of obtaining a reduction in his sentence. The exact loss of chance suffered
by KS was held to be a period of incarceration of approximately two years and three
months.
(2) The direct loss suffered by KS as a result of the breach of the constitutional rights
is loss of liberty. In assessing this loss, consideration should primarily be given to
the length of the extended imprisonment (Josephine Millette v Sherman Nicholls Civil
Appeal No. 14 of 2000), which, as above, is held in this case to be around two years
and three months. However, the conditions endured by KS during the extended term
of imprisonment should also be taken into consideration (Tamara Merson v The AG of
the Bahamas et al, PC Appeal No. 61 of 2003).
(3) KS’s evidence as to the conditions of his incarceration suggests that his distress and
inconvenience as a result of the prison authorities’ inaction was not limited to his inability to pursue the appeal, as the Attorney General suggests, but also covered distress
relating to the living conditions under which he was required to live in the extended
period of imprisonment.
(4) The fact that KS is no stranger to prison life does not excuse the behaviour of the
prison authorities in breaching his constitutional rights and therefore has no bearing
on the damages awarded.
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remedies
(5) KS is awarded nominal damages for breach of his constitutional rights of TT$5,000,
general damages of TT$170,000 with interest, exemplary damages of TT$10,000 and
the costs on the prescribed basis of TT$49,250.
for the claimant: mr gerald ramdeen; instructed by mr varun debideen
for the defendant: ms karen boodan; instructed by mr brent james
Claim No. CV2007-03035
Full text of judgment available at http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/
masalexander/2007/cv_07_03035DD28feb2012.pdf
damages | detention | custodial violence | assault | excessive force used by off­
icers | See liberty & security – Nnamdi v Attorney General
damages | unlawful detention | excessive delay in release | substantial award
required | See liberty & security – Wendell Beckles v Attorney General of Trinidad & Tobago & Anor
damages | suicide | award for failure to take reasonable steps to prevent risk | See
life – Rabone & Anor v Pennine Care NHS Foundation Trust
injunction | conservatory order | justified by prima facie case | See equality – Cen­tre
for Rights Education and Awareness (CREAW) & Ors v Attorney General
standing | suicide | parents of victim could claim for their bereavement | See life
– Rabone & Anor v Pennine Care NHS Foundation Trust
systemic discrimination | careful assessment of facts required before making
order
AIR CANADA V THIBODEAU
federal court of appeal
pelletier, gauthier and trudel jja
canada
25 sep 2012
The T’s are French-speaking Canadians and travelled on two separate round trips between
Canada and the United States. The airline AC did not offer several services in French,
which they are obliged to do pursuant to subsection 23(1)1 of the Official Languages Act
1985 (‘the OLA’).2 The OLA promotes the principle of equality of both English and French
as Canada’s two official languages. The T’s filed a complaint with the Commissioner of
Official Languages (‘the COL’) and successfully applied to the Federal Court for a declaratory judgment that AC had breached its duties under the OLA, a letter of apology, damages
and a structural/institutional order on the basis that AC’s breaches were systemic. AC
appealed to the Federal Court of Appeal.
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remedies
In allowing the appeal in part, it was held that:
Per Trudel JA (Pelletier and Gauthier JJA concurring):
(1) Article 293 of the Montreal Convention (‘the MC’) excludes the award of damages for
incidents which have occurred during international carriage.4 The Federal Court erred
in law by stating that the provisions of the OLA prevail over the MC as both the OLA
and the MC, properly construed, can be harmonised.
(2) The MC has a very broad ambit which is triggered by an incident occurring during
international carriage and sets out, in a limited way, the causes of action which may
give rise to compensation and the compensable types of damage.
(3) Although the MC does not address all aspects of international carriage, it constitutes a
complete code as concerns the aspects of international carriage that it expressly regulates, which includes the air carrier’s liability for damages regardless of the source of
this liability (Sidhu v British Airways, [1997] 1 All ER 193 considered). It also precludes
awards for damages for causes of action not arising out of a risk inherent in air carriage, such as an invasive body search (El Al Israel Airlines v Tsui Yuan Tseng 525 US 155
(1999) 119 S. Ct. 662), racial discrimination (King v American Airlines 284 F. 3d 352 (2nd
Cir. 2002)) or a physical disability (Stott v Thomas Cook Tour Operators Ltd. and others
[2012] EWCA Civ 66).
(4) Before concluding that legal provisions are in conflict, there should be an attempt
to harmonise them in view of the general presumption that the law is coherent
(Pierre-Andrew Cote et al, Interpretation des lois, 4th edn (Montreal, Themis, 2009)).
Therefore, an attempt should be made to harmonise the provisions of the MC, which
precludes damages, with s 77(4)5 of the OLA, which permits them.
(5) The Government Response to the Seventh Report of the Standing Joint Committee
on Official Languages on the provision of bilingual services at Air Canada states
that a court will have power to award damages for violation of the OLA ‘in appropriate situations’. Therefore, the award of damages will not always constitute the most
suitable remedy, and the MC represents one factor which the trial judge may take
into account when fashioning a ‘just and appropriate’ remedy under s 77(4) of the
OLA.
(6) The MC and OLA can therefore be harmonised, and the cumulative application of
the MC and OLA does not produce an unreasonable result. AC is at all times subject
to the OLA except that the T’s are not entitled to compensatory or non-compensatory
damages for incidents occurring during international carriage, where the MC has full
force.
(7) The judgment under appeal is vitiated by error of law as the Federal Court could not
award damages for the incidents that occurred during international carriage.
(8) The Federal Court was not entitled to issue the general order against AC to comply
with Part IV of the OLA as it lacked specificity.
(9) Such an order should only be granted in exceptional circumstances, such as where a
party announces that it deliberately intends to break the law or breaks it with impunity
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remedies
without regard for its duties and the rights of others (Métromédia CMR Inc. v Tétreault,
reflex, [1994] R.J.Q. 777, [1994] J.Q. no 2785 (C.A.Q.) considered).
(10)The terms of the order in this case are not precise enough. The terms of the order
must be clear and specific as the party needs to know exactly what has to be done to
comply with the order, courts do not usually watch over or supervise performance,
and the specificity requirement is linked to the claimant’s ability to follow up nonperformance with contempt of court proceedings (Pro Swing Inc. v Elta Golf Inc., 2006
SCC 52 (CanLII), 2006 SCC 52, [2006] 2 S.C.R. 612 considered).
(11) Part IV of the OLA encompasses all communications with the public by AC and its
subcontractors, whether on board airplanes, in airports or call centres, both in Canada
and abroad. The order, as drafted, would have to be interpreted by the court hearing
contempt of court proceedings and, in such a case, the order would not be able to
remedy the harm.
(12) The Federal Court was not entitled to issue a structural order against AC as the problem was not systemic and the order is imprecise and disproportionate.
(13)For a structural order to be a just and appropriate remedy it must be relevant
to the experience of the claimant, address the circumstances in which the right
was infringed, be respectful of the separation of functions among the legislature, executive and judiciary, be appropriate to the role of the courts and not
impose substantial hardships unrelated to securing the right (Doucet-Boudreau
v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3
considered).
(14)For a breach to be ‘systemic’ there will often be hundreds, if not thousands, of allegations of a failure to respect the relevant right (Fédération Franco-Ténoise v Canada
(Attorney General), 2008 NWTCA 6 (CanLII), [2008] N.W.T.J. No. 46 considered).
A recent claim for systemic discrimination was based on ‘very substantial evidence’
(Canada (Attorney General) v Jodhan, 2012 FCA 161 (CanLII) considered).
(15) The evidence in this case is not substantial, and AC has since taken corrective action
with regard to certain recommendations made by the COL. All corrective action
should be taken into account when fashioning a just and appropriate remedy.
(16)The structural order was not supported by a careful assessment of the facts and the
application of relevant legal principles. The order is also imprecise and disproportionate in relation to the prejudice actually suffered by the T’s.
(17) The MC does not provide compensation for moral prejudice, pain and suffering, and
loss of enjoyment during a vacation where language rights have been violated.
(18)The conclusions above are based on an interpretation of Article 29 of the MC and
its interaction with the OLA. There is in no way a question of weakening the language rights protected by the OLA, of challenging its importance or of discounting
the ­gravity of the violations reported by the T’s. Deterrence as well as a just and appropriate remedy is served by the legal declaration against AC, the letter of apology and
damages for the incident occurring outside of international carriage.
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remedies
|
reproductive rights
Observations
(1) To permit exceptions to the MC, whereby a passenger could sue outside the MC for
losses sustained in the course of international carriage by air, would ‘distort the whole
system’ (Sidhu v British Airways (above) applied).
(2) The purpose of the MC is to ensure that, in all questions relating to the carrier’s liability, it
is the provisions of the MC which apply and the passenger does not have access to any other
remedies, whether common law or otherwise (Sidhu v British Airways (above) applied).
(3) The MC is an exclusive regime and precludes certain types of damage such as stress
or anxiety (Morris v KLM Royal Dutch Airlines, [2001] EWCA Civ 790, [2001] 3 All ER
126 considered).
for the appellants: louise-hélène sénécal and david rhéault; instructed by air
canada centre law branch (1276), dorval, quebec
for the respondents: michel thibodeau and lynda thibodeau on their own behalf
for the intervener: pascale giguère and kevin shaar; instructed by office of the
commissioner of official languages, legal affairs branch, ottawa, ontario
2012 FCA 246 (CanLII)
Full text of judgment available at http://www.canlii.org/en/ca/fca/doc/2012/2012fca246/
2012fca246.html
systemic discrimination | disability | approach was overbroad | See equality – Moore
v British Columbia (Education)
1. Subsection 23(1) states that the carrier must ensure that
members of the travelling public ‘can communicate with
and obtain those services in either official language from an
office or facility of the institution in Canada or elsewhere
where there is a significant demand for those services in that
language’.
2. Official Languages Act, R.S.C. 1985, c.31 (4th Supp).
3. Article 29 states that ‘in the carriage of passengers,
baggage and cargo, any action for damages, however
founded, whether under this Convention or in contract
or in tort or otherwise, can only be brought subject to the
conditions and such limits of liability as are set out in this
Convention without prejudice to the question as to who
are the persons who have the right to bring suit and what
are their respective rights. In any such action, punitive,
exemplary or any other non-compensatory damages shall not
be recoverable’.
4. Convention for the Unification of Certain Rules Relating
to International Carriage by Air signed in Montreal on
28 May 1999, incorporated into Canadian law under the
Carriage by Air Act, R.S.C. 1985, C. c-26, Schedule IV
(Montreal Convention).
5. Section 77(4) states that ‘where, in proceedings under
subsection (1), the Court concludes that a federal institution has
failed to comply with this Act, the Court may grant such remedy
as it considers appropriate and just in the circumstances’.
Reproductive rights
pregnancy | mother mortality ratio | failure to adequately implement preventive
scheme | See health – Sandesh Bansal v Union of India & Ors
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265
separation of powers
Separation of powers
medical treatment | allocation of resources | political question involved
CENTRE FOR HEALTH HUMAN RIGHTS & DEVELOPMENT & ORS V ATTORNEY
GENERAL
constitutional court
mpagi-bahigeine dcj, byamugisha, kavuma, nshimye
and kasule jja
uganda
5 jun 2012
The four petitioners filed a Constitutional Petition (No. 16 of 2011) containing 11 allegations against the Government. The petition was brought to the Court of Appeal sitting as
the Constitutional Court under Articles 137(3)(4) and 45 of the Constitution and Rule 3
of the Constitutional Court (Petitions and References) Rules, SI No. 91 of 2005. Among
other things, the petition alleged that the petitioners and the public were affected by the
non-provision of basic maternal commodities in Government health facilities and by
the imprudent and unethical behaviour of health workers toward expectant mothers.
The petition alleged that a number of constitutional violations, including violations of
the right to life and the right to health, arose from inadequate State provision of such
maternal healthcare, commodities and treatment. The respondent contended that the
way the petition was framed required the court to make a judicial decision involving
and affecting ‘political questions’. In so doing the court would in effect be interfering
with political discretion which by law is a preserve of the Executive and the Legislature.
The court should not deal directly with questions that the Constitution has made a sole
responsibility of another branch of Government. The respondent argued that for the
court to determine the issues in the petition it would have to call for a review of all the
policies of the entire health sector and the sub-sector of maternal healthcare services and
make findings on them, and that these policies are the sole preserve of the Executive and
the Legislature.
In upholding the respondent’s preliminary objection and striking out the petition, it was
held that:
(1) The ‘political question’ doctrine holds that certain issues should not be decided
by courts because their resolution is committed to another branch of government
and/or because those issues are not capable, for one reason or another, of judicial
resolution. Its purpose is to distinguish the role of the Judiciary from those of the
Legislature and the Executive, preventing the former from encroaching on either
of the latter. Under this rule, courts may choose to dismiss cases even if they have
jurisdiction over them.
(2) It is apparent that several formulations which vary slightly according to the settings
in which the question arises may describe a ‘political question’, although each has
one or more elements which identify it as essentially a function of separation of
powers.
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separation of powers
|
sexuality
(3) The judiciary should not make decisions on ‘political questions’ unless very clear
cases of violation or threatened violation of individual liberty or infringement of the
Constitution are shown. Therefore, it is for the petitioners to prove that there have
been violations of the Constitution.
(4) Although it may be true that the Government had not allocated enough resources
to the health sector, and in particular to maternal healthcare services, the court is
reluctant to determine the questions raised in this petition. The Executive has the
political and legal responsibility to determine, formulate and implement polices of
Government for, inter alia, the good governance of Uganda. This duty is a preserve of
the Executive and no person or body has the power to determine, formulate or implement these polices except in the Executive.
(5) Entertaining the petition would encroach on the domain of the Executive and the
Legislature and would thus fall foul of the ‘political question’ doctrine.
(6) Legal alternatives exist under the Constitution and other laws provide for the resolution of such political questions. For example, among the remedies that the High
Court may grant is the one of the prerogative order of mandamus requiring a public officer to carry out public duties that relate to his or her scope and course of
employment in a public office. There are also the other prerogative remedies of prohibition, certiorari and injunctions under ss 36, 37, and 38 of the Judicature Act.
Additionally, the Government Proceedings Act Cap 77 vests in any person a right to
claim and to seek remedies and compensation against the Government, whether the
claim is in contract (s 2) or in tort (s 3) as long as the acts complained of were carried out by authorised officers, employees and/or representatives of the Government.
Finally, the petitioners retain the option to apply for redress under Article 50 of the
Constitution.
(7) No order is made as to costs as the petitioners were motivated by their respective
concerns for the plight of maternal mothers, and not for personal considerations in
lodging and prosecuting the petition.
for the petitioners mr kabanda david
for the respondent: principal state attorney ms mutesi patricia
[2012] UGCC 4
Full text of judgment available at http://www.ulii.org/ug/judgment/constitutionalcourt/2012/4
Sexuality
gender reassignment | legal recognition | required without undergoing com­plete
surgery
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267
sexuality
AB V WESTERN AUSTRALIA; AH V WESTERN AUSTRALIA
high court
french cj, gummow, hayne, kiefel and bell jj
australia
6 oct 2011
AB and AH each identified themselves as male although they retained gender characteristics of a female. Both AB and AH had undergone gender reassignment procedures.
AB and AH appeared before the Gender Reassignment Board (‘the Board’), which is an
entity established by the Gender Reassignments Act 2000 (‘the Act’) that has the power
to grant an individual a recognition certificate which forms conclusive evidence of that
individual’s choice to change their gender upon undergoing a sexual reassignment procedure. The Board was satisfied at first instance that both AB and AH were considered to be
of the appearance of a male person and that all indications were that they had adopted the
lifestyle of that gender. The Board determined, however, not to issue certificates to them
while they retained female reproductive systems, as there would be adverse social and
legal consequences should AB and AH still have the capacity to bear children.
The State Administrative Tribunal (‘the Tribunal’), upon reviewing the decisions of the
Board, set the decision aside, directing the Board to grant AB and AH with recognition
certificates.
The Court of Appeal of the Supreme Court of Western Australia then allowed an appeal,
setting aside the Tribunal’s decisions, which was subsequently further appealed by the
applicants.
In allowing the appeal, it was held that:
(1) The Board has within its powers the ability to determine applications and issue certificates in suitable cases. The certificate once granted must be registered by the Registrar
of Births, Deaths and Marriages allowing for the alteration of the register.
(2) An individual must have undergone a reassignment procedure before they are able to
apply to the Board for a certificate; the ‘reassignment procedure’ is defined as ‘a medical or surgical procedure (or a combination of such procedures) to alter the genitals
and other gender characteristics of a person, identified by a birth certificate as male
or female, so that the person will be identified as a person of the opposite sex and
includes, in relation to a child, any such procedure (or combination of procedures) to
correct or eliminate ambiguities in the child’s gender characteristics’.
(3) Under s 15 of the Act there are conditions and requirements that the Board must follow.
Section 15(1)(a) contains jurisdictional requirements which can be satisfied when one or
more of the following applies: (a) the reassignment procedure which the applicant has
undertaken was carried out in Western Australia; (b) the applicant’s birth is registered
in that State; or (c) the applicant has been a resident of the State of Western Australia
(‘the State’) for not less than 12 months. Section 15(1)(b) states that the Board needs to
be satisfied that the applicant: (i) believes that his or her true gender is the gender to
which the applicant has be reassigned; (ii) has adopted the lifestyle and has the gender
characteristics of a person of the gender to which the applicant has been reassigned;
and (iii) has received proper counselling in relation to his or her gender identity.
268
8 CHRLD
sexuality
(4) A key part and major focus of these appeals is found in sub-paragraph 4(ii) above and
the term ‘gender characteristics’. The term is defined to mean ‘the physical characteristics by virtue of which a person is identified as male or female’.
(5) Both AB and AH gave evidence before the Tribunal and also led medical evidence.
Both appellants had identified as male from an early age and had been diagnosed as
suffering from gender identity disorder. They do retain some gender characteristics
of a female although, in 2004, AB had begun testosterone therapy, and had a bilateral
mastectomy a year later. In 2006 AH commenced the same therapy and had the same
surgical procedure a year later and also had further revision of the procedure in 2008.
In both cases the Board was satisfied that the appearance of the appellants was that of
a male and that they were happy that they had adopted the lifestyle of such a person.
(6) The sole reason for not issuing certificates to the appellants was that they retained
female reproductive systems. It was reasoned by the Board: ‘The fact of having a
female reproductive system is inconsistent with being male. Because it is inconsistent with being male, it is inconsistent with being identified as male.’ The Board added
that should the appellants be issued with recognition certificates while they have the
capacity to bear children there would be adverse social and legal consequences.
(7) The decisions made by the Board in both cases were subject to review by the State
Administrative Tribunal, pursuant to s 21 of the Act. The Tribunal set aside the decisions
and granted each application for a recognition certificate and directed the Board to issue
them. The Court of Appeal of the Supreme Court of Western Australia allowed appeals
from those decisions and set aside the Tribunal’s decisions. For the reasons which follow, these appeals were allowed with costs and the orders of the Court of Appeal set
aside, with the result that the decision and orders of the Tribunal are reinstated.
(8) It was not expected that either will undergo any further surgical procedures as the evidence
at the Tribunal was that phalloplasty was not performed in Australia due to high risks and
low success and neither AB nor AH considered having a hysterectomy as necessary in
identifying as male; it was also felt that retaining their internal organs would be beneficial
should advances in medical procedures make phalloplasty more feasible in future.
(9) Both had maintained the testosterone therapy and while they continued to do so they
will remain infertile. Experts at the Tribunal confirmed that should they discontinue
use of the drug there may be a chance of them conceiving a child. However, the expert
also stated that he had never encountered a situation like this where the individual had
ceased the therapy. Both AB and AH told the Tribunal that they would not cease the
treatment as they found it to be essential to their way of life. This evidence was accepted.
(10)The Tribunal stated the changes undergone by the appellants both internally and
externally to be: ‘The applicants have not merely altered their external appearance by
superficial means. The medical and surgical procedures they have undergone have
altered their genitals and other gender characteristics in profound ways. They have
undergone clitoral growth and have the voices, body shapes, musculature, hair distribution, general appearance and demeanour by virtue of which a person is identified
as male. They have acquired characteristics that are consistent with being male, and
inconsistent with being female, to the extent that only an internal medical examination
8 CHRLD
269
sexuality
would disclose what remains of their female gender characteristics. Insofar as what
remains of their female gender characteristics have been altered to such an extent that
it no longer functions, it is no longer a female gender characteristic.’
(11) In the eyes of the Tribunal the appellants had done everything that was medically available to identify themselves as male. The area of concern to the Court of Appeal was
whether the appellants had specifically satisfied the requirement of s 15(1)(b)(ii) of the Act.
(12)This required the Court to consider ‘gender characteristics’ and whether the appellants have those required to be male. The majority felt that this could not be answered
affirmatively as the appellants chose to retain some female characteristic. In particular,
both Martin CJ and Pullin JA agreed that it was necessary for them to undergo further
changes in order to comply with the standards and expectations of the community.
The idea that a person’s gender characteristics could be decided by the observation of
a casual bystander was rejected.
(13) Buss JA dissented. For the purposes of the Act only external physical characteristics
needed to be considered. There are certain limitations on the extent to which someone
can alter their external characteristics and, under the Act, someone suffering from
gender dysphoria is provided with mechanism enabling their reassigned gender to be
legally recognised. If physical characteristics were to include internal characteristics
then the Act would have used those terms and referred to what the person ‘is’ and not
what they are ‘identified as’.
(14) The High Court took the view that the approach of Buss JA should be preferred. It gives
weight to the central issue that the legislation was designed to tackle – the sex of the person and their characteristics are not always unequivocally male or female. The procedure
of reassignment itself suggests that a person’s gender may be ambiguous. The legislation
also seeks to alleviate the suffering and difficulty faced by someone who faces discrimination as a result by providing them with legal recognition of their gender. The person’s
belief about their gender is one requirement for the issuing of a recognition certificate;
the other, found in s 14 of the Act, is that an applicant has undergone a medical or surgical
procedure to alter their genitals or other gender characteristics. This procedure should be
seen as evidence of the commitment of the applicant’s wish to reassign their gender.
(15) Section 14(1) of the Act cannot be taken to require a particular level of success in copying the gender characteristics of the opposite sex. This approach was considered in the
case of R v Harris (1988) 17 NSWLR 158 regarding a male-to-female transsexual. The
legislation cannot be taken to have intended an approach to the requirements of s 15(1)
(b)(ii) which would operate differentially and unfairly as the intention of legislation
was of a remedial and beneficial kind. Furthermore, s 14(1) requires only for an alteration of the genitals or gender characteristics; it does not call for a person to undertake
a full removal of vestige of the gender which they deny, including any sexual organs.
Observations
(1) Decisions in Australia dealing with the question of the recognition given to those with
the gender of a transsexual person who has undertaken a surgical procedure to alter
their gender have been reviewed by Lockhart J and Mathews J in Secretary, Department
of Social Security v SRA [1993] FCA 573; (1993) 43 FCR 299 and R v Harris, respectively.
270
8 CHRLD
sexuality
(2) In both cases it was held that previous decisions of Corbett v Corbett [1971] p 83 and R
v Tan [1983] QB 1053, which applied a purely biological test, should not be followed.
In SRA it was noted that a combination of developments in surgical and medical
techniques in the area of sexual reassignment, along with changing social attitudes
towards individuals who choose their gender, had led to that conclusion.
(3) It was observed that gender should not simply be regarded as a matter of chromosomes. It is in fact a psychological question, one that deals with self-perception and
also a social question, namely how society perceives the individual.
(4) McMullin J made clear in Re T [1975] 2 NZLR 449 at 452-453 that, while courts were
able to deal with some of the legal issues surrounding the reassignment of gender, they
could not make declarations as to the gender of the individual which would bind persons who were not parties to the proceedings. It was clear that legislation was necessary.
(5)In Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at
397, Dixon CJ referred to the importance of the context, general purpose, policy and
fairness of a statutory provision, as guides to its meaning.
(6) The modern approach to such statutory interpretation includes the existing state of
the law using context in its widest sense.
(7) Martin CJ observed that the term ‘identified’ is used in the definition of both reassignment procedure, as ‘identified by a birth certificate’, and the recognition certificate,
which ‘identifies a person who has undergone a reassignment procedure as being of
the sex to which they have been reassigned’. It was inferred that the term carried connotations of being established or accepted. This suggests the recognition certificate
requires a high standard of gender characteristics to be achieved.
(8) It is relevant to note that a surgical procedure to alter the genitals or gender characteristics is not required of an applicant for a recognition certificate. The definition
of the required procedure refers to either medical or surgical procedures; medical
procedures would include hormone therapy like that undertaken by the appellants.
The Tribunal observed that the Australian Parliament did not consider surgery to be
a necessary step in order to acquire the gender characteristics by which a person is
identified as male or female; the options that the legislation provides do not support
the view that a person must take all possible steps.
for the appellant: s penglis; instructed by freehills
for the first respondent: g t w tannin sc with c s bydder; instructed by the state
solicitor (wa)
for the second respondent: submitting appearances
for the intervener the australian human rights commission: d s mortimer sc
with e a bennett; instructed by australian human rights commission
[2011] HCA 42 P15/2011 AND P16/2011
Full text of judgment available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/42.html
8 CHRLD
271
women
Women
discrimination | conservatory order | justified by prima facie case | See equality –
Centre for Rights Education and Awareness (CREAW) & Ors v Attorney General
domestic violence | meaning | restriction to physical violence not appropriate
YEMSHAW V LONDON BOROUGH OF HOUNSLOW
supreme court
lord hope, lord rodger,
lord walker, lady hale and
lord brown
united kingdom
26 jan 2011
Y left her matrimonial home with her two young children and sought help from the local
housing authority for refuge, on the basis that she was scared of her husband and feared
that he would take the children away from her. After two interviews with Y, the local
authority deemed she was not homeless as her husband had never hit her or threatened to
do so. A local authority review applied the view set out in Danesh v Kensington and Chelsea
Royal London Borough Council [2006] EWCA Civ 1404 that she was not homeless within
the meaning of the Housing Act 1996 (‘the Act’). The question before the court is whether
the word ‘violence’ in ss 177(1)1 and 177(1)(A)2 of the Act is confined to physical violence (as
decided in Danesh (above) as per Neuberger LJ).
Y contended that violence is not confined to physical contact.
In allowing the appeal, it was held that:
Per Lady Hale (Lord Hope and Lord Walker concurring):
(1) By the time the Act came into force the understanding of domestic violence had
moved on from the narrow focus upon battered wives and physical contact. There is
no comprehensive definition of the kind of conduct which it involves in the Act.
(2) The correct approach is to construe the Act as if one were interpreting it the day after
it was passed (R v Ireland [1998] AC 147 considered).
(3) There are forms of conduct which undoubtedly put a person in fear of violence but
which would not necessarily be described as threats, including intimidation or stalking behaviours. Such forms of conduct should be covered by the concept of violence
(Bond v Leicester City Council [2001] EWCA Civ 1544 considered).
(4) There is a narrow view of domestic violence in this case. The test for the determination of violence should always be the view of the objective outsider but applied to the
particular facts, circumstances and personalities of the people involved.
Per Lord Rodger:
There is no reason why Parliament would have intended the position to be any different
where someone will be subjected to deliberate conduct, or threats of such conduct, that
272
8 CHRLD
women
may cause psychological harm. Violence is therefore interpreted as including such conduct and s 177(1) of the Act should apply in such cases. To conclude otherwise would be to
play down the serious nature of psychological harm.
Per Lord Brown:
(1) There is doubt as to whether at any stage of legislative history the ‘domestic violence’
provisions with which we are here concerned – now enacted as ss 177 and 198 of the
Act – were intended to extend beyond the limits of physical violence. The statutory
definition stipulates that it is only if the threat is likely to be carried out that it constitutes violence; the threat itself, however hurtful and humiliating, unless likely to be
carried out, is excluded from the definition.
(2) The developing perception and understanding of domestic violence now requires the
interpretation of the relevant sections in line with the Secretary of State’s present views.
(3) It was thought that the solution to the problem raised by this case lay in the Secretary
of State’s order-making power under s 177(3)(A)3 of the Act. Rather, the court has no
alternative but to decide whether it is indeed now right, pursuant to the Fitzpatrick
principle (Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27), to give the
terms ‘domestic violence’ and ‘violence’ the wider meaning contended for by the
appellant and both interveners.
(4) Allowing this appeal would mean overturning two clear and unanimous decisions
in the Court of Appeal, respectively those of Mummery, Jacob and Neuberger LJJ in
Danesh and of Waller, Laws and Etherton LJJ in the present case.
Observations
Per Lord Brown:
The explanation to keep violence as just physical violence would lie partly in the obvious
need for the speedy rehousing of those identified as being at risk of violence in order to
safeguard their physical safety, and partly in the comparative ease with which this particular class of prospective victims can be identified. With the best will in the world, it is
difficult to accept that there is quite the same obvious urgency in rehousing those subject
to psychological abuse, with anything like the same ease.
for the appellant: nathalie lieven qc and martin hodgson; instructed by scully
and sowerbutts
for the respondent: richard drabble qc and matthew feldman; instructed by
london borough of hounslow legal services
for the intervener the secretary of state for communities and local government: james maurici; instructed by the treasury solicitor
for the intervener the women’s aid federation of england: stephen knafler qc
and neil jeffs; instructed by sternberg reed
[2011] UKSC 3, [2011] Fam Law 349, [2011] 1 WLR 433, [2011] PTSR 462, [2011] HLR 16, [2011] WLR 433, [2011] 1
All ER 912, [2011] NPC 9
8 CHRLD
273
women
Full text of judgment available at http://www.bailii.org/uk/cases/UKSC/2011/3.html
inheritance | intestacy | marital status of claimant not relevant
SAMSON KIOGORA RUKUNGA V ZIPPORAH GAITI RUKUNGA
high court (meru)
kasango j
kenya
17 feb 2011
The deceased – who died intestate – had married more than once but only one wife survived him, ZGR, now deceased. His son SKR filed an application for confirmation of grant
of the deceased’s properties. The application was subject to an objection by CN, one of the
deceased’s daughters whose mother was ZGR.
SKR’s proposed distribution made no provision for married daughters of the deceased.
CN’s protest was on the grounds that although she was at one time married, she got
divorced and returned to her deceased father’s land.
In allowing the objection and finding that the proposed grant was unconstitutional, it was
held that:
Per Kasango J:
(1) The key constitutional issue that needs to be decided are whether divorced women can
inherit their parent’s estate following intestacy.
(2) In consideration of whether CN is entitled to inherit her parent’s estate, it does not
matter if is she is married or not.
(3) Article 60(1)(f)4 of the Constitution provides for the elimination of gender discrimination in respect of land.
(4) Discrimination is also prohibited by Article 275 of the Constitution; clauses 3, 4 and 5
show that marital status is not a basis to deny a woman’s right to inherit her parents’
estate.
[2011] eKLR, Succession Cause 308 of 1994
Full text of judgment available at http://kenyalaw.org/Downloads_FreeCases/80730.pdf
inheritance | intestacy | recognition of woman-to-woman marriage | surviving
wife could claim
KATAM V CHEPKWONY & ANOR
high court (mombasa)
ojwang j
274
kenya
17 jun 2011
8 CHRLD
women
K filed a petition seeking the grant of Letters of Administration Intestate for the estate of
CK (a woman). K contended that she was the widow of CK and was entitled to administer
the estate. In response, J and S objected to the petition by filing a cross-petition to prove
that a valid will existed naming the beneficiaries of the deceased’s estate as J and S. J and
S argued further that K was not a wife of the deceased but was a servant, and that the ceremony between K and CK was not a traditional Nandi ceremony. K submitted evidence
to show that a ceremony did in fact take place whereby K was married to CK under Nandi
customary law. A contract of marriage was duly written and signed by the parties. The
marriage was preceded by a betrothal ceremony which was witnessed by several persons,
including J. K also contested the validity of the will of CK, arguing that such a will had
never been made by CK. Conflicting information had been put forward by witnesses for
J and S as to the creation of the will and it emerged that there were two different sets of
papers purporting to be the will of the deceased. Further, a thumb-print of CK had been
used against CK’s name on the record taken at the wedding ceremony which did not
match the thumb-print on the will submitted to the court by J and S. The dispute therefore
was based mainly around issues of evidence and on one unique area of law, the marriage
of two women under Nandi culture. In reaching his decision, the judge took account of
this custom when interpreting the applicable legislation (s 29 of the Law of Succession Act
(Cap 160)) to find in favour of K.
In dismissing the objection and the cross-petition, in regarding the custom of a woman-towoman marriage under the scheme of s 29 of the Law of Succession Act, and in making
the grant of Letters of Administration Intestate in favour of the petitioner, K, it was held
that:
(1) The cause was one of intestate succession and not testate succession. There had
been four separate accounts as to the creation of the will and it could not be said
with certainty that the will was valid. However, it could be said with certainty that the
thumb-prints both contended to be CK’s on the will and on the record taken at the
wedding ceremony did not match.
(2) Section 29 of the Law of Succession Act sets out that a ‘dependant’ shall inherit from
a deceased, the dependant being ‘firstly the wife or wives, or former wife or wives,
and the children of the deceased, whether or not maintained by the deceased immediately prior to his death’. In establishing how a woman-to-woman marriage should be
treated in this respect, Nandi customary law should be respected.
(3) Woman-to-woman marriages are a custom of the Nandi community and there is case
law indicating the legality of such marriages among the community (Esther Chepkuaui
v Chepngeno Kobot Chebet and Johanah Kipsang, Kapsabet RMCC Divorce Cause No. 16
of 1980 considered).
(4) The type of woman-to-woman marriage that took place between K and CK is a
traditional ceremony of the Nandi sub-tribe of the Kalenjin. CK was a ‘female husband’ who under Nandi culture pays ‘bridewealth’ (the equivalent of a dowry) for
and marries another woman. The female husband should always be a woman of
advanced age who has failed to bear a son. Marriage consideration is paid and a man
from the female husband’s clan has sexual intercourse with the girl, any offspring
being regarded as the children of the female husband (‘Is the Female Husband a
8 CHRLD
275
women
|
work
Man? Woman/Woman Marriage among the Nandi of Kenya’, Regina Smith Oboler,
Ethnology Vol. 19, No. 1, January 1980, pp69-70; Esther Chepkuaui v Chepngeno Kobot
Chebet (above) applied). CK had paid bridewealth of livestock and money to purchase
livestock.
(5) The intention of the Nandi custom is that the offspring of the female husband will
become heir to the property. While it was recognised that this law is in a state of flux,
it is changing only gradually and the practice should be protected under Article 11(1) of
the Constitution, which ‘recognises culture as the foundation of the nation and as the
cumulative civilisation of the Kenyan people and nation’.
(6) K’s account of the ceremony taking place was supported by six witnesses demonstrating supporting evidence including photograph albums and accounts of the
ceremony and of K’s involvement. There was no evidence that K was merely a servant to CK. On the contrary, she was a wife to CK and by the customary laws she
and her sons belonged to the household of CK. Further, the evidence of J and S as
to the validity of a Nandi wedding ceremony was not consistent with the customary law.
(7) K and her sons were therefore entitled to the grant of letters of representation and
to inheritance rights in CK’s estate. The custom of woman-to-woman marriage was
read into the scheme of s 29 of the Law of Succession Act. K herself was wife to the
deceased and her two sons the children of the deceased.
for the petitioner: mr kirui
for the respondents/cross-petitioners: mr mkan
[2011] eKLR, Succession Cause No. 212 of 2010
Full text of judgment available at http://kenyalaw.org/Downloads_FreeCases/82443.pdf
medical treatment | allocation of resources | political question involved |
separation of powers – Centre for Health Human Rights & Development & Ors v Attorney General
See
pregnancy | mother mortality ratio | failure to adequately implement preven­tive
scheme | See health – Sandesh Bansal v Union of India & Ors
Work
child labour | duty to prohibit employment in circuses | See children – Bachpan Bachao
Andolan v Union of India & Ors
276
8 CHRLD
work
1. Section 177(1) provides: ‘It is not reasonable for a person to
continue to occupy accommodation if it is probable that this
will lead to domestic violence [or other violence] against him,
or against: (a) a person who normally resides with him as
a member of his family; or (b) any other person who might
reasonably be expected to reside with him.’
2. Section 177(1)(A) provides: ‘For this purpose “violence”
means: (a) violence from another person; or (b) threats of
violence from another person which are likely to be carried
out; and violence is “domestic violence” if it is from a person
who is associated with the victim.’
3. Section 177(3)(A) provides: ‘The Secretary of State may
by order specify: (a) other circumstances in which it is to
be regarded as reasonable or not reasonable for a person to
continue to occupy accommodation…’
4. Article 60(1)(f) provides: ‘Land in Kenya shall be
held, used and managed in a manner that is equitable,
efficient, productive and sustainable and in accordance
with the following principles…(f) elimination of gender
discrimination in law, customs and practices related to land
and property in land.’
5. Article 27 provides: ‘(1) Every person is equal before
the law and has the right to equal protection and equal
8 CHRLD
benefit of the law. (2) Equality includes the full and equal
enjoyment of all rights and fundamental freedoms. (3)
Women and men have the right to equal treatment,
including the right to equal opportunities in political,
economic, cultural and social spheres. (4) The state shall
not discriminate directly or indirectly against any person
on any ground, including race, sex, pregnancy, marital
status, health status, ethnic or social original, colour,
age, disability, religion, conscience, belief, culture, dress,
language or birth. (5) A person shall not discriminate
directly or indirectly against another person on any of the
grounds specified or contemplated in clause (4). (6) To
give full effect to the realisation of the rights guaranteed
under this Article, the State shall take legislative and other
measures, including affirmative action programmes and
policies designed to redress any disadvantage suffered
by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately
provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause
(6), the State shall take legislative and other measures to
implement the principle that not more than two-thirds of
the members of elective or appointive bodies shall be of the
same gender.’
277
Commonwealth
Human Rights Law
Digest
Index
Vol.8
Summer 2014
Editor
Rachel Fleetwood
Consultant Editor
Jeremy McBride
Editorial Board
Diana Copper | commonwealth secretariat
Martin Lau | soas
Derek O’Brien | oxford brookes university
John Wadham | interights
Vesselina Vandova | interights
Using the
index
These guidance notes apply both to
this index and for the separate previous
indexes for volumes 1, 2, 3, 4, 5, 6 and 7.
Page numbers
These are given in the format ‘issue/
page number’ of the current volume
being indexed, e.g. in this index 1/25
refers to volume 8, issue 1, page 25. Page
numbering continues between issues, e.g.
the first page of issue 2&3, p. 123, follows
on from p. 122, the last page of issue 1.
Subject headings
Subject headings are arranged
alphabetically under each relevant major
heading. The page number against each
heading refers to where the case may be
found which the subject heading refers
to. Since a case may have a number of
subject headings this often means that the
subject heading itself may not appear on
that page.
Commonwealth
Human Rights Law
Digest
Index
Vol.8
Subject
headings283
Table of cases
by name293
Table of cases
by jurisdiction297
Cases cited
301
Constitutions
and legislations 311
International
and regional
standards319
subject headings
Subject
headings
Children
ABDUCTION | ADJUDICATION OF DISPUTE |
BEST INTERESTS | RETURN TO COUNTRY OF
HABITUAL RESIDENCE JUSTIFIED 2&3/123
ADOPTION | PARENTAL CONSENT | NOT
REQUIRED WHERE CHILD’S BEST INTERESTS
NOT SERVED2&3/191
DETENTION | JUVENILE JUSTICE | CONTINUING
OBLIGATION ON STATE TO PREVENT JUVENILE
IMPRISONMENT2&3/126
EDUCATION | DUTY TO PROHIBIT EMPLOYMENT
IN CIRCUSES2&3/127
GUARDIANSHIP | ASSISTANCE TO ISSUE
PASSPORT NOT REQUIRED1/79
LABOUR | CIRCUSES | DUTY TO PROHIBIT 2&3/127
PARENTAL CONTACT | ALLEGATION OF
PAEDOPHILIA | DISCLOSURE OF INFORMANT’S
IDENTITY | IMPACT ON HEALTH OUTWEIGHED
BY IMPORTANCE FOR PARTY’S CASE2&3/129
PARENTAL CONTACT | CONTINUED
RELATIONSHIP WITH SAME-SEX FORMER PARTNER
OF PARENT IN BEST INTERESTS2&3/194
PATERNITY TEST | POTENTIAL FOR REUNITING
DISPUTED PARENTS INSUFFICIENT
JUSTIFICATION 1/86
UNBORN CHILD | RIGHTS | BILL OF
RIGHTS NOT GENERALLY APPLICABLE |
RIGHT TO LIFE2&3/131
Cruel, inhuman
or degrading
treatment
BLOOD AND SALIVA SAMPLE | TAKING THROUGH
USE OF FORCE UNACCEPTABLE |
EVIDENCE OBTAINED IN BREACH OF RIGHT
INADMISSIBLE2&3/134
BODY SEARCH | INTERSEX PERSON | UNIQUE
CIRCUMSTANCES NOT CONSIDERED1/3
CORPORAL PUNISHMENT | WHIPPING PROBABLY
UNCONSTITUTIONAL1/1
DEATH PENALTY | MANDATORY REQUIREMENT
FOR MURDER UNCONSTITUTIONAL1/6
8 CHRLD
283
subject headings
DEATH PENALTY | MANDATORY SENTENCE
UNCONSTITUTIONAL2&3/138
DETENTION | PRISON CONDITIONS
Education
| SANITATION | REQUIREMENT TO EMPTY
ADMISSIONS POLICY | RESERVATION OF PLACES
CHEMICAL TOILET OBJECTIONABLE BUT
FOR GROUP NOT COVERED BY POSITIVE
NO BREACH OF RIGHT2&3/136
DETENTION CONDITIONS | INTERSEX
PERSON | SEPARATE ACCOMMODATION
ACCEPTABLE1/3
HANDCUFFING | FAILURE TO EXPLAIN
UNJUSTIFIED2&3/134
MINIMUM MANDATORY SENTENCE | LENGTH
NOT GROSSLY DISPROPORTIONATE1/118
DISCRIMINATION FOR MINORITIES 2&3/140
CHILDREN | DUTY TO PROHIBIT
EMPLOYMENT IN CIRCUSES2&3/127
DISCRIMINATION | DISABILITY | FAILURE TO
PROVIDE NECESSARY REMEDIAL CARE2&3/143
MINORITY SCHOOL | TEACHING
APPOINTMENTS | DUTY TO COMPLY WITH
RESERVATION POLICY NOT JUSTIFIED
BY PROVISION OF AID1/52
SEIZURE AND BEATING OF PRISONERS BY
SPECIAL NEEDS | INTERIM PROVISION WAS
SECURITY FORCES DURING BAIL APPLICATION
SUFFICIENT1/8
UNCONSTITUTIONAL1/32
SENTENCING | MANDATORY MINIMUM
STANDARD | NO OBJECTIVE MINIMUM
REQUIREMENT 1/8
| NOT GROSSLY DISPROPORTIONATE1/72
Death penalty
Equality
DISCRIMINATION | DIFFERENTIAL
CRUEL, INHUMAN OR DEGRADING
TREATMENT | NO PROHIBITED GROUND
TREATMENT | MANDATORY SENTENCE
DEMONSTRATED1/100
UNCONSTITUTIONAL2&3/138
DISCRIMINATION | DISABILITY | FAILURE TO
MANDATORY REQUIREMENT FOR MURDER
PROVIDE NECESSARY REMEDIAL CARE2&3/143
UNCONSTITUTIONAL1/72
DISCRIMINATION | DISABILITY | HOUSING
BENEFIT | UNIFORM APPLICATION DID NOT
Dignity
DETENTION | MENTAL ILLNESS | RELEASE
| REASONABLE STEPS REQUIRED WHERE
NO LONGER JUSTIFIED2&3/223
HANDCUFFING AND FORCIBLE
TAKING OF BLOOD AND SALIVA SAMPLE
UNJUSTIFIED2&3/134
MEDICAL TREATMENT | ACCESS | PRESUMPTION
THAT GENERIC DRUGS WERE COUNTERFEIT
UNJUSTIFIED2&3/230
TAKE ACCOUNT OF SPECIAL NEEDS2&3/147
DISCRIMINATION | GENDER | BIRTH REGISTRATION
| FAILURE TO PROVIDE INTERSEX CATEGORY
NOT UNCONSTITUTIONAL1/3
DISCRIMINATION | RESIDENCE | LENGTH
REQUIRED FOR SOCIAL WELFARE NOT
UNREASONABLE2&3/150
DISCRIMINATION | SEX | CONSERVATORY
ORDER | JUSTIFIED BY PRIMA FACIE CASE2&3/152
DISCRIMINATION | SEX | REFUSAL TO
SPLIT CHILD TAX CREDIT BETWEEN
PARENTS JUSTIFIABLE2&3/154
Disability
DISCRIMINATION | STATUS | RIGHT OF
DISCRIMINATION | HOUSING BENEFIT
DISCRIMINATION | SEX | UNLAWFUL DEATH
| UNIFORM APPLICATION DID NOT TAKE
| REDUCTION IN AWARD TO NON-EARNING
ACCOUNT OF SPECIAL NEEDS2&3/147
FAMILY MEMBER UNJUSTIFIED1/77
284
AUDIENCE | DIFFERENTIAL TREATMENT OF
ADVOCATES AND ATTORNEYS JUSTIFIED2&3/156
8 CHRLD
subject headings
EQUALITY BEFORE THE LAW | BAIL PROCEEDINGS
ACCESS TO JUSTICE | LIMITATION PERIOD | IMPACT
| BURDEN OF PROOF ON APPLICANT NOT
NOT DISPROPORTIONATE1/24
UNCONSTITUTIONAL1/56
ACCESS TO JUSTICE | PRECLUDED BY
EQUALITY BEFORE THE LAW | FAILURE TO
UNCONSTITUTIONAL ACTIVITIES OF THE STATE1/32
INFORM ACCUSED OF RIGHTS UNJUSTIFIED2&3/134
ACCESS TO JUSTICE | RESOLUTIONS BY BAR
EXPOSURE TO DANGER | POLICING BY
ASSOCIATIONS NOT TO DEFEND PARTICULAR
NON-PROFESSIONALS AND YOUTHS WITH
PERSONS WERE NULL AND VOID1/26
INADEQUATE TRAINING | USE UNJUSTIFIED2&3/227
BIAS | DISCIPLINARY TRIBUNAL | MEMBERS
SHOULD NOT HAVE INCLUDED PERSONS
Expression
RECOMMENDING PROCEEDINGS2&3/172
DELAY | LENGTH WAS UNREASONABLE 2&3/165
BROADCASTING | IMPARTIAL COVERAGE
DETENTION CONDITIONS PENDING TRIAL
| BREACHED BY BLACKLISTING OF INDEPENDENT
| CONVICTION COULD NOT BE VITIATED | See CRUEL,
POLITICAL COMMENTATORS ON ELECTION AND
INHUMAN AND DEGRADING TREATMENT1/3
ATTEMPTED COVER-UP2&3/159
DISCLOSURE | CIVIL FORFEITURE PROCEEDINGS
BROADCASTING | IMPARTIAL COVERAGE
| TEMPORARY RESTRICTION PRIOR TO SUBMISSION
| BREACHED BY DISCIPLINARY PROCEEDING
OF EVIDENCE JUSTIFIED 1/100
AGAINST REPORTER2&3/159
DOUBLE JEOPARDY | CONCURRENT
BROADCASTING | IMPARTIAL COVERAGE
PROCEEDINGS IN CIVILIAN AND MILITARY
| BREACHED BY MANIPULATION OF ELECTION
COURT UNJUSTIFIED1/32
COVERAGE2&3/159
EVIDENCE | ADMISSIONS DURING CUSTODIAL
BROADCASTING | INTERVIEW WITH PRISONER
INTERROGATION WITHOUT ACCESS TO LEGAL
ON REMAND | PROHIBITION DISPROPORTIONATE
ADVICE INADMISSIBLE1/27
IN SPECIFIC CIRCUMSTANCES2&3/161
EVIDENCE | BLOOD AND SALIVA SAMPLE
DEFAMATION | CRIMINAL LIABILITY
| INADMISSIBLE WHERE OBTAINED IN BREACH
| CONSTITUTIONALITY UPHELD2&3/163
OF PROHIBITION ON ILL-TREATMENT2&3/134
DEFAMATION | JOURNALISTS | DEFENCE OF HONEST
EVIDENCE | INFORMANT | DISCLOSURE OF
COMMENT ON PUBLIC FIGURES APPLIED1/11
IDENTITY | IMPACT ON HEALTH OUTWEIGHED
DEFAMATION | STRICT LIABILITY
BY IMPORTANCE FOR PARTY’S CASE2&3/129
UNCONSTITUTIONAL1/13
EVIDENCE | OBTAINED IN BREACH OF
HATE SPEECH | PROMOTING SECTARIANISM
CONSTITUTIONAL RIGHTS | FACTORS
| OFFENCE WAS CONSTITUTIONAL1/19
RELEVANT TO DISCRETION TO ADMIT 2&3/167
JOURNALISTS | DISCIPLINARY PROCEEDINGS
EVIDENCE | SENSITIVE GOVERNMENT
| BREACHED BROADCASTER’S DUTY
INFORMATION | BAR ON DISCLOSURE
OF IMPARTIAL COVERAGE2&3/159
WOULD NOT BE PREJUDICIAL 2&3/169
REPORTING RESTRICTIONS | BAIL PROCEEDINGS
EVIDENCE | STATEMENT | NON-ENGLISH
| MANDATORY BAN ON PUBLICATION
SPEAKING ACCUSED | CORRECT PROCEDURE
PROTECTED ACCUSED1/15
NOT FOLLOWED2&3/171
SEDITION OFFENCES NOT JUSTIFIABLE IN A
INDEPENDENT JUDICIARY | DISCIPLINARY
DEMOCRATIC SOCIETY
1/19
TRIBUNAL | MEMBERS SHOULD NOT HAVE
INCLUDED PERSONS RECOMMENDING
Fair hearing
ACCESS TO JUSTICE | INTERPRETATION | PRIVATE
CITIZEN CANNOT BRING A CONSTITUTIONAL
REFERENCE UNDER SECTION 18(1)1/22
8 CHRLD
PROCEEDINGS 2&3/172
INTERPRETATION | BEST PRACTICE
TO BE FOLLOWED 2&3/174
INTERPRETATION | INADEQUACY
NOT ESTABLISHED 2&3/174
285
subject headings
LEGAL REPRESENTATION | CUSTODIAL
BE POSSIBLE FROM OUTSET UNLESS
Family life
THERE WERE COMPELLING REASONS
ADOPTION | VALIDITY | WIFE’S CONSENT NOT
FOR RESTRICTION1/27
ESTABLISHED 2&3/253
LEGAL REPRESENTATION | CUSTODIAL
CHILDREN | ADOPTION | PARENTAL CONSENT
INTERROGATION | PRESENCE THROUGHOUT
| NOT REQUIRED WHERE CHILD’S
NOT REQUIRED1/29
BEST INTERESTS NOT SERVED 2&3/191
LEGAL REPRESENTATION | CUSTODIAL
CHILDREN | DISPUTED PATERNITY
INTERROGATION | RENEWED CONSULTATION
| COMPULSION TO UNDERGO TEST JUSTIFIED
ONLY WHERE REQUIRED BY CHANGE OF
FOR FURTHERANCE OF FAMILY VALUES 2&3/193
INTERROGATION | ACCESS SHOULD
CIRCUMSTANCES1/29
LEGAL REPRESENTATION | DISCIPLINARY
PROCEEDINGS | NOT REQUIRED FOR HEARING
BEFORE SCHOOL GOVERNORS 2&3/177
LEGAL REPRESENTATION | LEGAL AID |
COURT FAILED TO ENSURE PROVISION
FOR ACCUSED2&3/182
LEGAL REPRESENTATION | LEGAL AID |
FREEDOM TO CHOOSE COUNSEL NOT
GUARANTEED2&3/185
LEGAL REPRESENTATION | RESOLUTIONS BY BAR
ASSOCIATIONS NOT TO DEFEND PARTICULAR
PERSONS WERE NULL AND VOID1/26
MISCARRIAGE OF JUSTICE | COMPENSATION
| APPROACH TO INTERPRETATION 2&3/187
PREJUDICIAL PUBLICITY | BAIL PROCEEDINGS
| MANDATORY BAN ON PUBLICATION PROTECTED
ACCUSED1/15
PRESUMPTION OF INNOCENCE | NOT BREACHED
BY REFUSAL OF COMPENSATION FOR
MISCARRIAGE OF JUSTICE 2&3/187
PRESUMPTION OF INNOCENCE | SEIZURE OF
CHILDREN | EXTRADITION | IMPACT |
APPROACH TO SAFEGUARDING INTERESTS2&3/240
CHILDREN | PARENTAL CONTACT | UNMARRIED
FATHER WRONGLY PREVENTED FROM
PARTICIPATING IN HEARINGS1/37
CHILDREN | PARENTAL CONTACT | SAME-SEX
FORMER PARTNER OF PARENT ENTITLED TO
CONTINUE RELATIONSHIP 2&3/194
CO-HABITATION | DEATH OF PARTNER
| DUTY OF SUPPORT COULD BE INFERRED2&3/197
DOMESTIC VIOLENCE | MEANING
| RESTRICTION TO PHYSICAL VIOLENCE
NOT APPROPRIATE2&3/272
INHERITANCE | MARRIAGE | WOMAN-TOWOMAN MARRIAGE | SURVIVING WIFE
COULD CLAIM2&3/274
MARRIAGE | GENDER REASSIGNMENT
| INABILITY TO MARRY UNDER NEW GENDER
IDENTITY NOT UNCONSTITUTIONAL 2&3/250
PROPERTY | INHERITANCE | CHILD |
WIFE’S CONSENT TO ADOPTION
NOT ESTABLISHED2&3/253
PRISONERS BY SECURITY FORCES DURING BAIL
APPLICATION UNCONSTITUTIONAL1/32
SELF-INCRIMINATION | POLICE CAN STILL
QUESTION SUSPECT WHO CLAIMS TO HAVE
NOTHING TO SAY1/29
SELF-INCRIMINATION | POLICE INTERVIEW
| STATEMENT MADE UNDER DURESS
| RECORD INADMISSIBLE1/34
SENTENCING | DEATH PENALTY
| MANDATORY REQUIREMENT FOR
MURDER UNCONSTITUTIONAL1/6
WITNESSES | CROSS-EXAMINATION | IMPOSSIBLE
WHERE COURT FAILED TO ENSURE PROVISION
OF LEGAL REPRESENTATION FOR ACCUSED2&3/182
286
Health
MEDICAL RECORDS | DISCLOSURE | JUSTIFIED
BY PERCEIVED THREAT TO THE
SAFETY OF OTHERS THAT WAS
SERIOUS AND IMMINENT 2&3/246
MEDICAL TREATMENT | ACCESS | PRESUMPTION
THAT GENERIC DRUGS WERE COUNTERFEIT
UNJUSTIFIED 2&3/230
MEDICAL TREATMENT | ALLOCATION OF
RESOURCES | POLITICAL
QUESTION INVOLVED 2&3/266
8 CHRLD
subject headings
MEDICAL TREATMENT | DIGNITY | REPLACING
NIGHT-TIME CARER WITH INCONTINENCE
PADS ACCEPTABLE 2&3/200
MEDICAL TREATMENT | PREGNANCY | REFUSAL
FOR FAILURE TO PROVE ENTITLEMENT
UNJUSTIFIED1/112
PREGNANCY | MOTHER MORTALITY RATIO
| FAILURE TO ADEQUATELY IMPLEMENT
PREVENTIVE SCHEME 2&3/203
RIGHT | AN INALIENABLE COMPONENT OF
RIGHT TO LIFE1/112
Housing
EVICTION | NOTICE | TWENTY FOUR HOURS WAS
TOO SHORT 2&3/206
EVICTION | USE OF FORCE | UNJUSTIFIED AFTER
International and
regional standards
JURISDICTION | EXTRA-TERRITORIAL | ARMED
FORCES OUTSIDE BASE ABROAD NOT COVERED1/46
International
standards
TREATIES | JURISDICTION OF INTERNATIONAL
CRIMINAL COURT | DUTY OF
RECOGNITION EXISTED1/99
Language
SHORT NOTICE EXPIRED 2&3/206
EDUCATION | TEACHING APPOINTMENTS
HOMELESSNESS | INAPPLICABILITY OF
| DUTY TO COMPLY WITH RESERVATION
PROGRAMME TO PERSONS EVICTED FROM
POLICY NOT JUSTIFIED BY PROVISION OF AID 1/52
PRIVATE PROPERTY UNREASONABLE 2&3/207
Indigenous people
Liberty & security
ARREST | PROCEEDS OF CRIME | OBJECTIVE
DUTY TO CONSULT | ADVERSE IMPACT ON
SUPPORT FOR SUBJECTIVE BELIEF EXISTED1/91
INTERESTS MUST FIRST BE ESTABLISHED1/40
BAIL | BURDEN OF PROOF | REQUIRING
DUTY TO CONSULT | PAST INFRINGEMENT
APPLICANT TO JUSTIFY RELEASE NOT
NOT RELEVANT1/40
UNCONSTITUTIONAL1/56
Information
BAIL | ENTITLEMENT NOT A CONSTITUTIONAL
RIGHT1/56
BAIL | HEARING | MANDATORY BAN ON
ACCESS | PUBLIC INTEREST | DIFFERENCES
PUBLICATION BAN PROTECTED ACCUSED1/15
IN ADVICE CONCERNING PREROGATIVE OF
BAIL | NON-BAILABLE OFFENCE | ANTICIPATORY
MERCY COULD JUSTIFY OVERRIDING LEGAL
BAIL COULD STILL BE GRANTED1/58
PROFESSIONAL PRIVILEGE1/42
BAIL | SEIZURE OF PRISONERS BY
OFFICIAL RECORDS | DISCLOSURE
SECURITY FORCES DURING APPLICATION
| EXEMPTIONS | MINISTERIAL
UNCONSTITUTIONAL1/32
OFFICES COVERED 2&3/210
DEPRIVATION | RESIDENCE REQUIREMENT
OFFICIAL RECORDS | DISCLOSURE | EXEMPTIONS
| IMPACT ON RIGHT TO FAMILY LIFE WAS
| PERSONAL INFORMATION | INAPPLICABLE
UNREASONABLE1/62
TO POSITION OR FUNCTION OF GOVERNMENT
DETENTION | ARREST | UNLAWFUL | DAMAGES
EMPLOYEE 2&3/210
PAYABLE 2&3/214
PERSONAL COMMUNICATIONS DATA
DETENTION | CONSEQUENCE OF VEHICLE
| INSUFFICIENT PROTECTION IN SERVICE
SEARCH | JUSTIFIED WHERE OFFENCES
PROVIDER’S LICENCE 2&3/249
REASONABLY SUSPECTED1/91
8 CHRLD
287
subject headings
DETENTION | CRIMINAL PROCEEDINGS
SENTENCING | TORTURE | SENTENCE TO
| OBLIGATION TO BE BROUGHT PROMPTLY
BE WHIPPED HELD TO BE POTENTIALLY
BEFORE COURT ONLY APPLIES AT POINT
UNCONSTITUTIONAL1/1
OF INITIAL APPREHENSION1/64
| EXCESSIVE FORCE USED BY OFFICERS 2&3/215
Life
DETENTION | DELAY IN RELEASE | SYSTEMATIC
DAMAGES | UNLAWFUL DEATH | REDUCTION
FAILURE | SUBSTANTIAL DAMAGES REQUIRED 2&3/217
IN AWARD TO NON-EARNING FAMILY MEMBER
DETENTION | DISAPPEARANCE |
UNJUSTIFIED1/77
PROPER INVESTIGATION AND PROSECUTION
DEATH PENALTY | MANDATORY SENTENCE
REQUIRED 2&3/218
UNCONSTITUTIONAL 2&3/138
DETENTION | EMPLOYMENT OF CHILDREN IN
EFFECTIVE INVESTIGATION INTO DEATH
CIRCUSES | DUTY TO LIBERATE 2&3/127
| SOLDIER ON ACTIVE SERVICE ABROAD
DETENTION | JUVENILES | USE OF ADULT
| OBLIGATION COULD ARISE FROM ARGUABLE
DETENTION | CUSTODIAL VIOLENCE | ASSAULT
PRISONS UNJUSTIFIED 2&3/126
FAILURE TO PROTECT FROM EXTREME HEAT1/46
DETENTION | INTERVAL BETWEEN
EFFECTIVE INVESTIGATION INTO DEATH
ARREST AND FIRST COURT APPEARANCE
| SOLDIER ON ACTIVE SERVICE ABROAD
| MAXIMUM AUTHORISED SHOULD NOT BE
| OBLIGATION DID NOT AUTOMATICALLY
AUTOMATICALLY APPLIED 2&3/221
ARISE1/46
DETENTION | MENTAL ILLNESS | RELEASE
EXPOSURE TO DANGER | POLICING BY
| REASONABLE STEPS REQUIRED WHERE
NON-PROFESSIONALS AND YOUTHS WITH
NO LONGER JUSTIFIED 2&3/223
INADEQUATE TRAINING | USE UNJUSTIFIED 2&3/227
DETENTION | PRE-TRIAL | LENGTH WAS
HEALTH | ESSENTIAL COMPONENT OF RIGHT1/112
UNREASONABLE 2&3/165
MEDICAL TREATMENT | ACCESS | PRESUMPTION
DETENTION | PREVENTIVE | EXTENSION
THAT GENERIC DRUGS WERE COUNTERFEIT
VITIATED BY FAILURE TO STATE GROUNDS 1/67
UNJUSTIFIED 2&3/230
DETENTION | PREVENTIVE | NO REASONABLE
MEDICAL TREATMENT | FORCE FEEDING
BASIS FOR MAKING ORDER1/70
| JUSTIFIED WHERE CAPACITY IMPAIRED
DETENTION | PREVENTIVE | OPPORTUNITY
AND IN PATIENT’S BEST INTERESTS 2&3/232
TO MAKE REPRESENTATIONS | DELAY
MEDICAL TREATMENT | PREGNANCY | MOTHER
NOT JUSTIFIED1/70
MORTALITY RATIO | FAILURE TO ADEQUATELY
DETENTION | PRISON CONDITIONS | SEARCH
IMPLEMENT PREVENTIVE SCHEME 2&3/203
OF AN INTERSEXUAL CONSTITUTED CRUEL,
MEDICAL TREATMENT | PREGNANCY
INHUMAN OR DEGRADING TREATMENT1/3
| REFUSAL FOR FAILURE TO PROVE
DETENTION | RANDOM VEHICLE CHECK
| USE WOULD BE ARBITRARY1/91
SENTENCING | MANDATORY MINIMUM
| LENGTH NOT GROSSLY DISPROPORTIONATE1/118
SENTENCING | MANDATORY MINIMUM
| NOT GROSSLY DISPROPORTIONATE1/72
SENTENCING | MANDATORY MINIMUM
| SEPARATION OF POWERS DOCTRINE
ENTITLEMENT UNJUSTIFIED1/112
SUICIDE | PATIENT | REASONABLE STEPS
TO PREVENT RISK NOT TAKEN 2&3/233
UNBORN CHILD | ABORTION | LEGISLATION
DID NOT CREATE ANY RIGHT 2&3/131
Minorities
NOT BREACHED1/72
LANGUAGE | EDUCATION | TEACHING
SENTENCING | PAROLE ELIGIBILITY | PROVISION
APPOINTMENTS | DUTY TO COMPLY WITH
CONSTRUED TO PRESERVE BENEFIT OF PRIOR
RESERVATION POLICY NOT JUSTIFIED
POLICIES1/115
BY PROVISION OF AID1/52
288
8 CHRLD
subject headings
Movement
BODILY INTEGRITY | PATERNITY TEST
| COMPULSION JUSTIFIED FOR FURTHERANCE
OF FAMILY VALUES 2&3/193
EXPULSION | ASYLUM-SEEKER | FAILURE
DETENTION | PRISON CONDITIONS | SANITATION
TO ASSESS CLAIM | MINISTERIAL
| REQUIREMENT TO EMPTY CHEMICAL TOILET
AUTHORISATION INVALID2&3/237
OBJECTIONABLE 2&3/136
EXPULSION | CHILDREN | MINISTERIAL
DNA TESTING | CHILD | POTENTIAL FOR
CONSENT REQUIRED 2&3/237
REUNITING DISPUTED PARENTS INSUFFICIENT
EXPULSION | REFUSAL TO COMPLY
JUSTIFICATION1/86
| JUSTIFIED BY ENTITLEMENT TO SEEK
DNA TESTING | STRONG PRIMA FACIE CASE
RECOVERY OF PROPERTY FIRST 2&3/215
FOR USE REQUIRED1/86
EXTRADITION | IMPACT ON CHILDREN
GENDER REASSIGNMENT | FAILURE TO FACILITATE
| APPROACH TO SAFEGUARDING
JUSTIFIED BY SCARCITY OF RESOURCES1/3
INTERESTS 2&3/240
MEDICAL RECORDS | DISCLOSURE | JUSTIFIED BY
PASSPORT | MINORS | ISSUANCE NOT
PERCEIVED THREAT TO THE SAFETY OF OTHERS
JURISTIC ACT | LEGAL GUARDIAN’S
THAT WAS SERIOUS AND IMMINENT 2&3/246
ASSISTANCE NOT REQUIRED1/79
MEDICAL TREATMENT | DIGNITY | REPLACING
PASSPORT | MINORS | REQUIRING LEGAL
NIGHT-TIME CARER WITH INCONTINENCE PADS
GUARDIAN’S ASSISTANCE MAY BREACH
ACCEPTABLE 2&3/200
RIGHT TO FREEDOM OF MOVEMENT1/79
MEDICAL TREATMENT | FORCE FEEDING
REFUGEES | ASYLUM | PERSECUTION
| JUSTIFIED WHERE CAPACITY IMPAIRED
| AVOIDANCE BY CONCEALMENT OF
AND IN PATIENT’S BEST INTERESTS 2&3/232
HOMOSEXUALITY DID NOT NEGATE
MEDICAL TREATMENT | RIGHT TO REFUSE
WELL-FOUNDED FEAR1/105
| CAPACITY TO DECIDE MUST BE
SOCIAL WELFARE | RESIDENCE REQUIREMENT
ESTABLISHED 2&3/247
| LIMIT ON PERIOD OF TEMPORARY ABSENCE
PERSONAL COMMUNICATIONS DATA
EXCESSIVE 2&3/150
Political
participation
VOTING | ELECTORAL REGISTER | LIMITATION
ON PERIOD FOR ENROLMENT INVALID1/81
VOTING | REFERENDUM | CONSTITUTIONAL
AMENDMENT | PRISONERS COULD NOT BE
EXCLUDED1/83
VOTING | REGISTRATION | SUSPENSION
COULD BE LIFTED TO ALLOW INCLUSION
OF PRISONERS1/83
VOTING | RESIDENCY REQUIREMENT | IMPACT ON
DETAINED CITIZENS NOT UNJUSTIFIED 2&3/243
Private life
BIRTH REGISTRATION | FAILURE TO PROVIDE
INTERSEX CATEGORY NOT UNCONSTITUTIONAL1/3
8 CHRLD
| INSUFFICIENT PROTECTION IN SERVICE
PROVIDER’S LICENCE2&3/249
SEARCH AND SEIZURE | BODY SEARCH | INTERSEX
PERSON | UNIQUE CIRCUMSTANCES NOT
CONSIDERED1/3
SEARCH AND SEIZURE | DELAY FOLLOWING
ARREST DID NOT BREAK CAUSAL CONNECTION
OR CAUSE PREJUDICE1/91
SEARCH AND SEIZURE | ELECTRICITY USAGE
IN RESIDENTIAL PROPERTY | RECORDING
WITHOUT A WARRANT NOT IMPERMISSIBLE1/88
SEARCH AND SEIZURE | LIVING QUARTERS OF
COMMERCIAL TRUCK | LOW EXPECTATION OF
PRIVACY1/91
SEARCH AND SEIZURE | NOT INVALIDATED BY
ADDITIONAL CRIME DETECTION MOTIVE1/91
SEARCH AND SEIZURE | PRIVATE RESIDENCE
| MANNER OF EXECUTION NOT UNREASONABLE1/94
SEXUALITY | GENDER REASSIGNMENT | INABILITY
TO MARRY UNDER NEW GENDER IDENTITY NOT
UNCONSTITUTIONAL 2&3/250
289
subject headings
SEXUALITY | GENDER REASSIGNMENT
WITHOUT UNDERGOING COMPLETE
Remedies
SURGERY 2&3/268
CONSTITUTIONAL MOTION | LEAVE REQUIREMENT
| LEGAL RECOGNITION | REQUIRED
Procedure
INAPPLICABLE1/3
CONSTITUTIONAL MOTION | OTHER AVAILABLE
REMEDIES MUST FIRST BE EXHAUSTED1/100
JURISDICTION | INVESTIGATIONS BY
CONSTITUTIONAL PETITION | STANDING
INTERNATIONAL CRIMINAL COURT WERE
| HUMAN RIGHTS ORGANISATION COVERED1/83
CONSTITUTIONAL1/99
DAMAGES | ASSAULT, FALSE IMPRISONMENT
Property
AND MALICIOUS PROSECUTION | APPROACH
TO ASSESSMENT 2&3/214
DAMAGES | DETENTION | APPROACH TO
CONTROL OF USE | PROCEEDS OF CRIME
ASSESSMENT 2&3/260
| CIVIL FORFEITURE PROVISION
DAMAGES | DETENTION | CUSTODIAL VIOLENCE
CONSTITUTIONAL1/100
| ASSAULT | EXCESSIVE FORCE USED BY
DEPRIVATION | BAR ON EVICTION
OFFICERS 2&3/215
| REQUIREMENT THAT IT BE JUST
DAMAGES | EXEMPLARY | ABUSIVE CONDUCT
AND EQUITABLE NOT OBJECTIONABLE 2&3/207
| AWARD JUSTIFIED1/67
INHERITANCE | CHILD | WIFE’S CONSENT
DAMAGES | PRINCIPLES GOVERNING AWARDS FOR
TO ADOPTION NOT ESTABLISHED 2&3/253
BREACH OF CONSTITUTIONAL RIGHTS1/109
INHERITANCE | INTESTACY | RECOGNITION
DAMAGES | UNLAWFUL DETENTION | EXCESSIVE
OF WOMAN-TO-WOMAN MARRIAGE
DELAY IN RELEASE | SUBSTANTIAL AWARD
| SURVIVING WIFE COULD CLAIM 2&3/274
REQUIRED 2&3/217
INHERITANCE | WOMEN | INTESTATE ESTATE
DAMAGES | STRIP SEARCH | AWARD WAS
| MARITAL STATUS OF CLAIMANT NOT
APPROPRIATE1/109
RELEVANT 2&3/274
Refugees
DAMAGES | SUICIDE | AWARD FOR FAILURE TO
TAKE REASONABLE STEPS TO PREVENT RISK 2&3/233
DAMAGES | UNLAWFUL DETENTION
| DISCOUNT FOR LENGTH OF PERIOD
ASYLUM | PERSECUTION | AVOIDANCE
CONCERNED1/67
BY CONCEALMENT OF HOMOSEXUALITY
EXCLUSION OF EVIDENCE | EXECUTION OF
DID NOT NEGATE WELL-FOUNDED FEAR
SEARCH WARRANT NOT UNREASONABLE1/94
DEFINITION | SOCIAL GROUP | SEXUAL
ORIENTATION AN IMMUTABLE
CHARACTERISTIC1/105
ASYLUM-SEEKER | EXPULSION | FAILURE
TO ASSESS CLAIM | MINISTERIAL
AUTHORISATION INVALID 2&3/237
Religion
EDUCATION | CHILDREN | MANDATORY
RELIGIOUS AND MORAL INSTRUCTION
| NO INDOCTRINATION INVOLVED 2&3/256
290
INJUNCTION | CONSERVATORY ORDER
| JUSTIFIED BY PRIMA FACIE CASE 2&3/152
READING IN | AUTHORISATION
TO PARTICIPATE IN PROCEEDINGS
EXPANDED1/37
STANDING | SUICIDE | PARENTS OF VICTIM
COULD CLAIM FOR THEIR BEREAVEMENT 2&3/233
SYSTEMIC DISCRIMINATION | CAREFUL
ASSESSMENT OF FACTS REQUIRED BEFORE
MAKING ORDER2&3/262
SYSTEMIC DISCRIMINATION | DISABILITY
| APPROACH WAS OVERBROAD2&3/143
8 CHRLD
subject headings
Reproductive
rights
MATERNITY | STATE ASSISTANCE
| REFUSAL FOR FAILURE TO PROVE
ENTITLEMENT UNJUSTIFIED1/112
PREGNANCY | MOTHER MORTALITY RATIO
| FAILURE TO ADEQUATELY IMPLEMENT
PREVENTIVE SCHEME2&3/203
Retrospective
penalties
Sexuality
EXPRESSION | CONCEALMENT OF
HOMOSEXUALITY DID NOT NEGATE
WELL-FOUNDED FEAR OF PERSECUTION1/105
GENDER REASSIGNMENT | LEGAL RECOGNITION
| REQUIRED WITHOUT UNDERGOING COMPLETE
SURGERY2&3/268
Women
DEATH | DAMAGES | REDUCTION IN AWARD TO NONEARNING FAMILY MEMBER UNJUSTIFIED1/77
DISCRIMINATION | CONSERVATORY ORDER
PAROLE | ELIGIBILITY | PROVISION
| JUSTIFIED BY PRIMA FACIE CASE2&3/152
CONSTRUED TO PRESERVE BENEFIT
DOMESTIC VIOLENCE | MEANING
OF PRIOR POLICIES1/115
| RESTRICTION TO PHYSICAL VIOLENCE
PROCEEDS OF CRIME | CIVIL FORFEITURE
NOT APPROPRIATE2&3/272
| IMPOSITION POSSIBLE EVEN AFTER
INHERITANCE | INTESTACY | MARITAL
CRIMINAL CONDUCT1/100
STATUS OF CLAIMANT NOT RELEVANT2&3/274
Separation of
powers
INHERITANCE | INTESTACY | RECOGNITION
INDEPENDENT JUDICIARY | MANDATORY
MINIMUM SENTENCE NOT
UNCONSTITUTIONAL1/72
INDEPENDENT JUDICIARY | MANDATORY
MINIMUM SENTENCE | REQUIREMENT NOT
OBJECTIONABLE1/118
INDEPENDENT JUDICIARY | SEIZURE OF
PRISONERS BY SECURITY FORCES DURING
BAIL APPLICATION UNCONSTITUTIONAL1/32
LEGISLATIVE ROLE | ATTORNEY
GENERAL | POWER TO SEIZE PROPERTY
NOT INCLUDED1/32
MEDICAL TREATMENT | ALLOCATION
OF WOMAN-TO-WOMAN MARRIAGE |
SURVIVING WIFE COULD CLAIM2&3/274
MEDICAL TREATMENT | ALLOCATION
OF RESOURCES | POLITICAL QUESTION
INVOLVED2&3/266
PREGNANCY | MOTHER MORTALITY RATIO
| FAILURE TO ADEQUATELY IMPLEMENT
PREVENTIVE SCHEME2&3/203
PREGNANCY | STATE ASSISTANCE | REFUSAL
FOR FAILURE TO PROVE ENTITLEMENT
UNJUSTIFIED1/112
PREGNANCY | STATE ASSISTANCE
| INSTRUCTIONS FOR IMPROVEMENT ISSUED1/112
Work
OF RESOURCES | POLITICAL
CHILD LABOUR | DUTY TO PROHIBIT
QUESTION INVOLVED2&3/266
EMPLOYMENT IN CIRCUSES2&3/127
8 CHRLD
291
table of cases by name
Table
of cases
by name
A v Essex County Council
Supreme Court, United Kingdom
1/8
AB v Western Australia; AH v
Western Australia
High Court, Australia
2&3/268
Abortion Supervisory Committee
v Right To Life New Zealand Inc
Court of Appeal, New Zealand
2&3/131
Adams, R (on the application of)
v Secretary of State for Justice
Supreme Court, United Kingdom
2&3/187
Air Canada v Thibodeau
Federal Court of Appeal, Canada
ANS & Anor v ML
Court of Session (Scotland),
United Kingdom
2&3/262
2&3/191
Antony Murithi v OCS Meru Police
Station & Ors
High Court (Meru), Kenya
2&3/134
Arun Kumar Agrawal & Anor v
National Insurance Co Ltd & Ors
Supreme Court, India
1/77
Badrul Zaman bin P.S. Md Zakariah
v Superintendent, Preventive
Detention Centre, Kamunting & Ors
High Court (Civil Division), Malaysia
1/67
Besigye & Ors v Attorney General
Constitutional Court, Uganda
1/32
Bhabani Prasad Jena etc
v Convenr Sec Orissa S Comn
for Women & Anor
Supreme Court, India
1/86
British Broadcasting Corporation
(BBC) & Anor, R (on the application
of) v Ahmad (Rev 1)
High Court (England and Wales),
United Kingdom
2&3/161
Boulle v Government of Seychelles
& Anor
Constitutional Court, The Seychelles 2&3/243
Burnip v Birmingham City
Council & Anor
Court of Appeal (Civil Division),
(England & Wales), United Kingdom 2&3/147
8 CHRLD
293
table of cases by name
Cadder v Her Majesty’s Advocate
(Scotland)
Supreme Court, United Kingdom
1/27
Fiji Times Limited & Ors v Vayeshnoi
Court of Appeal, Fiji
1/11
Canada (Information Commissioner)
v Canada (Minister of National
Defence)
Supreme Court, Canada
2&3/210
Freedom of Expression Institute v
Chair, Complaints and Compliance
Committee & Ors
South Gauteng High Court
(Johannesburg), South Africa
2&3/159
Centre for Health Human Rights
& Development & Ors v Attorney
General
Constitutional Court, Uganda
2&3/266
G, R (on the application of) v X
School
Supreme Court, United Kingdom
2&3/177
Centre for Rights Education and
Awareness (CREAW) & Ors v
Attorney General
High Court (Narobi), Kenya
2&3/152
Chala Sani Abdula v The Queen
Supreme Court, New Zealand
2&3/174
City of Johannesburg Metropolitan
Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Anor
Constitutional Court, South Africa 2&3/207
Clark & Ors v Registrar of the
Manukau District Court & Anor
Court of Appeal, New Zealand
2&3/185
CM v NG
High Court (Western Cape),
South Africa
2&3/194
Court on its Own Motion v Dept of
Women and Child Development &
Ors
High Court, India
2&3/126
Director of Human Rights Proceedings
v Henderson
Human Rights Review Tribunal,
New Zealand
2&3/246
Dlamini v Dlamini & Anor
High Court, Swaziland
2&3/193
Dongo v The Registrar General &
Anor
Supreme Court, Zimbabwe
1/79
E (Children), Re
Supreme Court, United Kingdom
Fangupo v Rex; Fa’aoa v Rex
Court of Appeal, Tonga
294
2&3/123
1/1
Gathungu v Attorney General & Ors
High Court (Mombasa), Kenya
1/99
Gawanas v Government of the
Republic of Namibia
Supreme Court, Namibia
2&3/223
Ghisalal v Dhapubai (D) By Lrs
Supreme Court, India
2&3/253
Greens & Ors, Re Application for
Judicial Review
Court of Session, Outer House
(Scotland), United Kingdom
2&3/136
Hackl v Financial Intelligence Unit &
Anor
Constitutional Court, Seychelles
1/100
HH & Ors v Deputy Prosecutor of the
Italian Republic, Genoa
Supreme Court, United Kingdom
2&3/240
HJ (Iran) v Secretary of State for the
Home Department; HT (Cameroon)
v Secretary of State for the Home
Department
Supreme Court, United Kingdom
1/105
HKSAR v Muhammad Riaz Khan
Court of Final Appeal, Hong Kong
2&3/167
Humphreys v Revenue
and Customs
Supreme Court, United Kingdom
2&3/154
In Re Efigenia Semente; Semente v
Chingufo
High Court, Namibia
2&3/247
In Re Reference by Mondiai
Supreme Court of Justice,
Papua New Guinea
1/22
8 CHRLD
table of cases by name
Indian Medical Association v Union of
India & Ors
Supreme Court, India
2&3/140
Katam v Chepkwony & Anor
High Court (Mombasa), Kenya
2&3/274
Kelvin Singh v Attorney General
High Court, Trinidad & Tobago
2&3/260
Kimu v Access Malawi Limited
& Ors
High Court (Commercial Division),
Malawi2&3/249
Kong Yunming v The Director of
Social Welfare,Yao Man Fai George
v The Director of Social Welfare
High Court, Hong Kong
2&3/150
Nnamdi v Attorney General
Supreme Court, Samoa
Osland v Secretary to the
Department of Justice
High Court, Australia
Paixão & Anor v Road
Accident Fund
Supreme Court, South Africa
2&3/215
1/42
2&3/197
Pao & Ors v Attorney General
& Anor
High Court, Kenya
2&3/230
Pebam Ningol Mikoi Devi v State of
Manipur & Ors
Supreme Court, India
1/70
Laxmi Mandal v Deen Dayal
Harinagar Hospital & Ors; Jaitun v
Maternity Home MCD, Jangpura & Ors
High Court (Delhi), India
1/112
Plaintiff M70/2011 v Minister
for Immigration and Citizenship;
Plaintiff M106 of 2011 v Minister
for Immigration and Citizenship
High Court, Australia
2&3/237
Luc v R
Court of Appeal, The Bahamas
Ponifasio v Samoa Law Society
Court of Appeal, Samoa
2&3/172
2&3/171
Maraj-Naraynsingh v The Attorney
General of Trinidad & Tobago
& Anor
Judicial Committee of the Privy Council,
Trinidad & Tobago
1/64
Mashilo & Anor v Prinsloo
Supreme Court of Appeal,
South Africa
2&3/221
Miguel v The State
Judicial Committee of the Privy Council,
Trinidad & Tobago
2&3/138
Mohd. Hussain @ Julfikar Ali
v The State (Govt. of NCT) Delhi
Supreme Court, India
2&3/182
Ponoo v Attorney General
Constitutional Court, Seychelles
1/72
President Balochistan High
Court Bar Association v Federation
of Pakistan & Ors
Supreme Court, Pakistan
2&3/218
Principal Reporter v K & Ors
(Scotland)
Supreme Court, United Kingdom
1/37
Priscilla Nyokabi Kanyua v Attorney
General & Anor
High Court (Nairobi), Kenya
1/83
Moore v British Columbia (Education)
Supreme Court, Canada
2&3/143
R (on the application of McDonald)
v Royal Borough of Kensington
and Chelsea
Supreme Court, United Kingdom
2&3/200
Mutiso v Republic
Court of Appeal (Mombasa), Kenya
1/6
R v Ahmad & Ors
Supreme Court, Canada
2&3/169
Mwenda & Anor v Attorney General
Constitutional Court, Uganda
1/19
R v Cornell
Supreme Court, Canada
1/94
Nandini Sundar & Ors v State of
Chattisgarh
Supreme Court, India
2&3/227
R v Gomboc
Supreme Court, Canada
1/88
8 CHRLD
295
table of cases by name
R v Nolet & Anor
Supreme Court, Canada
1/91
R v Sinclair
Supreme Court, Canada
1/29
Rafi v State of Tamil Nadu
rep. by Home Dept & Ors
Supreme Court, India
Siddharam Satlingappa Mhetre v
State of Maharashtra & Ors
Supreme Court, India
1/58
1/26
Simeon v Attorney General
Constitutional Court, Seychelles
Ralekoala v Minister of Human
Rights, Justice and Constitution
Affairs & Ors
Constitutional Court, Lesotho
2&3/156
Razack Mohammed v Attorney
General & Anor
High Court, Trinidad & Tobago
2&3/214
Re E (Medical Treatment: Anorexia)
Court of Protection (England and Wales),
United Kingdom
2&3/232
Re J (A Child: Disclosure)
Court of Appeal (Civil Division),
(England and Wales),
United Kingdom
2&3/129
Rio Tinto Alcan Inc & Anor
v Carrier Sekani Tribal Council
Supreme Court, Canada
1/40
Selwyn Charles v The Attorney
General
High Court, Antigua & Barbuda
2&3/165
1/118
Sindhi Education Society & Anor
v Chief Secretary, Govt of NCT of
Delhi & Ors
Supreme Court, India
1/52
SL v Commission Scolaire
Des Chênes
Supreme Court, Canada
2&3/256
Smith, R (on the application of)
v Secretary of State for Defence
& Anor
Supreme Court, United Kingdom
1/46
State v Kapris & Ors
National Court of Justice,
Papua New Guinea
1/34
Sullivan v Attorney General & Anor
Constitutional Court, The Seychelles 2&3/163
RM v Attorney General & Ors
High Court (Mombasa), Kenya
1/3
Road Accident Fund & Anor v
Mdeyide
Constitutional Court, South Africa
Toronto Star Newspapers Ltd v
Canada
Supreme Court, Canada
1/15
1/24
Rowe & Anor v Electoral
Commissioner & Anor
High Court, Australia
Trustco Group International Ltd
& Ors v Shikongo
Supreme Court, Namibia
1/13
1/81
S v Dausab
High Court, Namibia
Van Vuren v Minister of Correctional
Services & Ors
Constitutional Court, South Africa
1/115
1/56
Vancouver (City) v Ward
Supreme Court, Canada
Samson Kiogora Rukunga
v Zipporah Gaiti Rukunga
High Court (Meru), Kenya
2&3/274
Sandesh Bansal v Union of India
& Ors
High Court of Madhya Pradesh
Jabalpur, India
2&3/203
Secretary of State for the Home
Department v AP
Supreme Court, United Kingdom
296
1/62
W v Registrar of Marriages
Court of Appeal, Hong Kong
1/109
2&3/250
Wendell Beckles v Attorney General
of Trinidad & Tobago & Anor
High Court, Trinidad & Tobago
2&3/217
Yemshaw v London Borough of
Hounslow
Supreme Court, United Kingdom
2&3/272
8 CHRLD
table of cases by jurisdiction
Table
of cases
by
jurisdiction
Africa
Kenya
Antony Murithi v OCS Meru Police
Station & Ors
2&3/134
Centre for Rights Education and Awareness
(CREAW) & Ors v Attorney General 2&3/152
Gathungu v Attorney General & Ors
Katam v Chepkwony & Anor
Mutiso v Republic
Pao & Ors v Attorney General
& Anor
Priscilla Nyokabi Kanyua v Attorney
General & Anor
RM v Attorney General & Ors
1/99
2&3/274
1/6
2&3/230
1/83
1/3
Samson Kiogora Rukunga v Zipporah
Gaiti Rukunga
2&3/274
Lesotho
Ralekoala v Minister of Human Rights,
Justice and Constitution
Affairs & Ors
2&3/156
Malawi
Kimu v Access Malawi Limited
& Ors
2&3/249
Namibia
Gawanas v Government of the Republic
of Namibia
2&3/223
In Re Efigenia Semente;
Semente v Chingufo
S v Dausab
2&3/247
1/56
The Seychelles
Boulle v Government of Seychelles
& Anor
2&3/243
Hackl v Financial Intelligence Unit
& Anor
1/100
Ponoo v Attorney General
1/72
Simeon v Attorney General
1/118
Sullivan v Attorney General & Anor
Trustco Group International Ltd
& Ors v Shikongo
8 CHRLD
2&3/163
1/13
297
table of cases by jurisdiction
South Africa
City of Johannesburg Metropolitan
Municipality v Blue Moonlight
Properties 39 (Pty) Ltd & Anor
2&3/207
CM v NG
2&3/194
Freedom of Expression Institute
v Chair, Complaints and Compliance
Committee & Ors
2&3/159
Mashilo & Anor v Prinsloo
2&3/221
Paixão & Anor v Road Accident Fund 2&3/197
Road Accident Fund & Anor v Mdeyide
1/24
Van Vuren v Minister of Correctional
Services & Ors
1/115
Swaziland
Dlamini v Dlamini & Anor
2&3/193
Uganda
Besigye & Ors v Attorney General
Centre for Health Human Rights
& Development & Ors
v Attorney General
Mwenda & Anor v Attorney General
1/32
2&3/266
1/19
Zimbabwe
Dongo v The Registrar General &
Anor1/79
Americas
Antigua & Barbuda
Selwyn Charles v The Attorney
General2&3/165
The Bahamas
Luc v R
2&3/171
Canada
Air Canada v Thibodeau
2&3/262
Canada (Information Commissioner)
v Canada (Minister of
National Defence) 2&3/210
Moore v British Columbia
(Education) 2&3/143
R v Ahmad & Ors
2&3/169
R v Cornell
298
1/94
R v Gomboc
1/88
R v Nolet & Anor
1/91
R v Sinclair
1/29
Rio Tinto Alcan Inc & Anor v Carrier
Sekani Tribal Council
1/40
SL v Commission Scolaire
Des Chênes
2&3/256
Toronto Star Newspapers Ltd v Canada
Vancouver (City) v Ward
1/15
1/109
Trinidad & Tobago
Kelvin Singh v Attorney General
2&3/260
Maraj-Naraynsingh v The Attorney
General of Trinidad & Tobago & Anor
1/64
Miguel v The State
2&3/138
Razack Mohammed v Attorney
General & Anor
2&3/214
Wendell Beckles v Attorney
General of Trinidad &
Tobago & Anor
2&3/217
Asia
Hong Kong
HKSAR v Muhammad Riaz Khan
2&3/167
Kong Yunming v The Director of
Social Welfare, Yao Man Fai George
v The Director of Social Welfare
2&3/150
W v Registrar of Marriages
2&3/250
India
Arun Kumar Agrawal & Anor v National
Insurance Co Ltd & Ors
1/77
Bhabani Prasad Jena etc v Convenr
Sec Orissa S Comn for Women & Anor
1/86
Court on its Own Motion v Dept of
Women and Child Development
& Ors
2&3/126
Ghisalal v Dhapubai (D) By Lrs
2&3/253
Indian Medical Association v
Union of India & Ors
2&3/140
Laxmi Mandal v Deen Dayal Harinagar
Hospital & Ors; Jaitun v Maternity Home
MCD, Jangpura & Ors
1/112
8 CHRLD
table of cases by jurisdiction
Mohd. Hussain @ Julfikar Ali v
The State (Govt. of NCT) Delhi
2&3/182
Nandini Sundar & Ors v State
of Chattisgarh
HJ (Iran) v Secretary of State for the Home
Department; HT (Cameroon) v Secretary
of State for the Home Department
1/105
2&3/227
Humphreys v Revenue and Customs 2&3/154
Pebam Ningol Mikoi Devi v State
of Manipur & Ors
1/70
Rafi v State of Tamil Nadu rep.
by Home Dept & Ors
1/26
Sandesh Bansal v Union of India
& Ors
2&3/203
Siddharam Satlingappa Mhetre v
State of Maharashtra & Ors
1/58
Sindhi Education Society & Anor v
Chief Secretary, Govt of NCT of Delhi
& Ors
1/52
Malaysia
Badrul Zaman bin P.S. Md Zakariah
v Superintendent, Preventive Detention
Centre, Kamunting & Ors
1/67
Pakistan
President Balochistan High Court Bar
Association v Federation of Pakistan
& Ors
2&3/218
1/37
2&3/200
Rabone & Anor v Pennine Care NHS
Foundation Trust
2&3/233
Re E (Medical Treatment: Anorexia) 2&3/232
Re J (A Child: Disclosure) 2&3/129
Secretary of State for the Home
Department v AP
1/62
Smith, R (on the application of)
v Secretary of State for Defence & Anor
1/46
Yemshaw v London Borough
of Hounslow
2&3/272
Pacific
Australia
Osland v Secretary to the Department of
Justice1/42
United Kingdom
1/8
Adams, R (on the application of)
v Secretary of State for Justice
2&3/187
ANS & Anor v ML
2&3/191
British Broadcasting Corporation
(BBC) & Anor, R (on the application of)
v Ahmad (Rev 1) 2&3/161
Burnip v Birmingham City Council
& Anor
R (on the application of McDonald)
v Royal Borough of Kensington
and Chelsea
AB v Western Australia; AH v Western
Australia2&3/268
Europe
A v Essex County Council
Principal Reporter v K & Ors (Scotland)
2&3/147
Plaintiff M70/2011 v Minister for
Immigration and Citizenship;
Plaintiff M106 of 2011 v Minister for
Immigration and Citizenship
Rowe & Anor v Electoral
Commissioner & Anor
2&3/237
1/81
Fiji
Fiji Times Limited & Ors v Vayeshnoi
1/11
New Zealand
Cadder v Her Majesty’s Advocate
(Scotland)1/27
Abortion Supervisory Committee
v Right To Life New Zealand Inc
2&3/131
E (Children), Re
2&3/123
Chala Sani Abdula v The Queen
2&3/174
G, R (on the application of) v
X School
2&3/177
Clark & Ors v Registrar of the Manukau
District Court & Anor
2&3/185
Greens & Ors, Re Application for
Judicial Review
2&3/136
Director of Human Rights Proceedings
v Henderson
2&3/246
HH & Ors v Deputy Prosecutor of
the Italian Republic, Genoa
2&3/240
8 CHRLD
Papua New Guinea
In Re Reference by Mondiai
1/22
299
table of cases by jurisdiction
State v Kapris & Ors
1/34
Samoa
Nnamdi v Attorney General
300
Ponifasio v Samoa Law Society
2&3/172
Tonga
2&3/215
Fangupo v Rex; Fa’aoa v Rex
1/1
8 CHRLD
cases cited
Cases cited
Alphabetical
A
A v Head Teacher and Governors of Lord
Grey School [2006] UKHL 14
A v Secretary of State for the Home
Department [2005] 2 AC 68
1/9
2&3/149
Aaron Simeon v The Attorney General
CC No. 1 of 2010
1/73
Abdul Ghani Haroon & Another
v The Inspector General of Police
[2001] 2 CLJ 709
1/69
Adri Dharan Das v State of West Bengal
(2005) 4 SCC 303
1/59
Ahmedabad St. Xaviers College Society
v State of Gujarat [1974] INSC 106
1/54
Al-Saadoon and Mufdhi v United Kingdom
(admissibility) (2009) 49 EHRR SE11
1/47
Albert Chang & Anor v Tsey Wai Chun
Paul [2000] HKCFA 35
1/12
Albert Ronny du Plessis v The State
(High Court of Namibia, 15 May 1992,
unreported)1/57
Albert Ruturi & Ors v The Minister of
Finance & Ors (High Court of Kenya
(Nairobi), Misc Civil Application
No 908 of 2001, unreported)
1/84
Alexander v Minister of Justice and
Others (SA 32/2008) [2010] NASC 2 2&3/224
Ali v R [1992] 2 All ER
1/73
AM (Somalia) v Entry Clearance
Officer [2009] EWCA Civ 634
2&3/148
Amalgamated Engineering Union of
South Africa v Minister of Labour
1965 (4) SA 94 (W) 96D
2&3/160
Amare v Secretary of State for the Home
Department [2005] EWCA Civ 1600
1/107
Amod v Multilateral Vehicle Accidents Fund
1999 (4) SA 1319 (A) 2&3/198
Anthony Hordern & Sons Ltd
v Amalgamated Clothing and Allied Trades
Union of Australia (1932) 47 CLR 1
2&3/238
Anufrijeva v Southwark London Borough
Council [2003] EWCA Civ 1406
1/110
Anufrijeva v Southwark London Borough
Council [2004] QB 1124
2&3/201
8 CHRLD
301
cases cited
Appellant S395/2002 v Minister for Immigration
(2003) 216 CLR 473
1/107
Bringshaw v Bringshaw [1938]
HCA 34
Application of Jim Kas, Governor of Madang
[2001] SC670
1/23
British Columbia (Public Service Employee
Relations Commission) v BCGSEU, 1999
CanLII 652 (SCC) 2&3/145
Associated Provincial Picture Houses
Ltd. v Wednesbury Corporation
[1947] 1 KB 223
2&3/202
2&3/216
Brogan v United Kingdom (1988) 11
EHRR 17 paras. 55 to 62
1/66
Atta Fosu v Canada (Minister of Citizenship
and Immigration) 2008 FC 1135
1/107
Brooks v Canada Safeway Ltd., 1989
CanLII 96 (SCC) Attorney General v Uganda Law Society
[2009] 5 LRC 1
1/34
Brown v Board of Education of Topeka,
347 U.S. 483 (1954) 2&3/144
Attorney General (Cth); Ex rel McKinlay
v The Commonwealth (1975) 135 CLR 1
1/82
Brown v Durham Regional Police Force
(1998) 43 OR (3d) 223 (CA)
Attorney General of Trinidad and Tobago
v Ramanoop [2005] UKPC 15
1/110
Brümmer v Minister for Social Development
and Others ZACC 21 (2009)
1/25
B
C
Badrul Zaman bin P.S. Md. Zakariah
v Timbalan Menteri Hal Ehwal Dalam Negeri
Malaysia & Anor [1994] MLJU 1 1/68, 1/69
Campbell v MGN Ltd [2004]
UKHL 22
Baigent’s case [1994] 3 NZLR 667
2&3/217
Banarsi Dass v Teeku Dutta (2005)
4 SCC 449
1/87
Bankovic & Ors v Belgium & Ors (2001) 11
BHRC 435
1/47
Bato Star Fishing (Pty) Ltd v Ministers of
Environmental Affairs and Tourism and Others
2004 (7) BCLR 687
1/117
Belgian Linguistic Case (No. 2) (1968)
1 EHRR 252
1/9
2&3/145
1/93
2&3/130
Canada (Attorney General) v Jodhan, 2012
FCA 161 (CanLII) 2&3/264
Canada (Information Commissioner)
v Canada (Commissioner of the Royal
Canadian Mounted Police),
2003 SCC 8 [2003] 2&3/212
Canadian Broadcasting Corp
v New Brunswick (Attorney General)
[1996] 3 SCR 480
1/15
Canadian Civil Liberties Assn
v Ontario (Minister of Education)
(1990) 71 O.R. (2d) 341
2&3/257
Bell v D.P.P. of Jamaica [1985] 2 All E.R.
5852&3/166
Canadian Newspapers Co v Canada
(Attorney General) [1988] 2 SCR 122
1/17
Bellinger v Bellinger (2002) WLR 411
1/4
Bici v Ministry of Defence [2004]
EWHC 786 (QB)
Carmichelle v Minister of Safety
and Security [2001] ZACC 22
1/57
1/51
Carson v United Kingdom
[2010] ECHR 338
1/49
Bisher Al Rawi and others v The Security
Services and others [2010] EWCA Civ 482 1/102
Black; R v Prosper [1994] 3 S.C.R. 236
1/30
Bond v Leicester City Council [2001]
EWCA Civ 1544
2&3/272
Botta v Italy (1998) 26 EHRR 241
2&3/201
Brajendra Singh v State of M.P (2008) 13
SCC 16
2&3/255
Branson v Bower [2002] Q.B. 737
1/12
Brian Azemia v Republic CS 82 of 97
1/73
302
Central Okanagan School District No. 23
v Renaud, 1992 CanLII 81 (SCC) 2&3/145
Charles Onyango Obbo & Another
v Attorney General SCC No. 2 of 2002
1/20
Charlotte Helena Botha v The State
(High Court of Namibia, CA 70/95,
20 October 1995, unreported)
1/57
Chember v Russia [2008] ECHR 591
1/49
Chepelev v Russia (2008) 47EHRR37 2&3/192
8 CHRLD
cases cited
Christine Goodwin v the United Kingdom,
Application No. 28957/95
Cloutier v Langlois [1990] 1 SCR 158
1/4
1/93
Congrégation des témoins de Jéhovah de
St-Jérôme-Lafontaine v Lafontaine (Village)
2004 SCC 48 (CanLII) 2&3/259
Commissioner for Railways (NSW)
v Agalianos [1955] HCA 27
Corbett v Corbett [1970] 2 WLR 1306
2&3/271
1/4
Corbett v Corbett (otherwise Ashley)
1971 P 83
2&3/251, 271
Crampton v Walton 2005 ABCA 81
1/96
D
Dagg v Canada (Minister of Finance),
[1997] 2 S.C.R 403
Dagenais v Canadian Broadcasting Corp
[1994] 3 SCR 835
2&3/212
1/16
Edmond Adeline v The Family Tribunal
(Constitutional Case No. 3 of 2000,
unreported)1/102
Edmonton Journal v Alberta (Attorney General)
[1989] 2 SCR 1326
1/18
Edwards v United Kingdom (2002)
35 EHRR 487
2&3/234
El Al Israel Airlines v Tsui Yuan Tseng
525 US 155 (1999) 119 S. Ct. 662
2&3/263
Eldridge v British Columbia (Attorney General),
1997 CanLII 327 (SCC) 2&3/145
Elsholz v Germany (2000) 34 EHRR 1412
1/38
Ergi v Turkey (1998) 32 EHRR 388
1/50
Esther Chepkuaui v Chepngeno Kobot
Chebet and Johanah Kipsang, Kapsabet
RMCC Divorce
Cause No. 16 of 1980
2&3/275-276
Ex parte Kedar 1993(1) SA 242
2&3/196
Danesh v Kensington and Chelsea Royal
London Borough Council [2006]
EWCA Civ 1404
2&3/200
F
Davis v R [2008] UKHL 36
1/102
Deaton v Attorney-General
and the Revenue Commissioners
(1963) IR 170
Fazal Ghosi v State of Uttar Pradesh (1987)
3 SCC 502 (INSC)
1/70
1/120
Dedman v The Queen [1985] 2 SCR 2
1/92
Derbyshire County Council v
Times Newspapers Ltd [1993] AC 534
1/12
Dimarco v Wyoming Department of
Corrections 2004 WL 307421
Fitzpatrick v Sterling Housing Association Ltd
[2001] 1 AC 27
2&3/273
1/4
Dissanayake v Sri Jayawardenapura
University [1986] 2 Sri LR 254
2&3/164
Fose v Minister of Safety and Security
1997 (3) SA 786 (C.C.), 1997 (7)
BCLR 851
1/110, 1/117
Doucet-Boudreau v Nova Scotia
(Minister of Education), 2003
SCC 62 (CanLII) 1/110, 2&3/264
DPP v Tokai [1996] AC 856
1/65
Drozd and Janousek v France
and Spain (1992) 14 EHRR 745
1/48
Du Plessis v Road Accident Fund
2004 (1) SA 359 (SCA) 2&3/198
Dunlea; Bivens v Six Unknown Named
Agents of Federal Bureau of Narcotics,
403 U.S 388 (1971)
8 CHRLD
2&3/186
Fédération Franco-Ténoise v Canada (Attorney
General), 2008 NWTCA 6 (CanLII) 2&3/264
Findlay v United Kingdom
[1997] 24 EHRR 221
2&3/173
G
Gentilhomme & Ors v France [2002]
ECHR 441
Germaine Amesbury v The Chief Justice
and others (Constitutional Case No. 6
of 2006, unreported)
1/51
1/102
Gideon v Wainwright2&3/184
Gilligan v Criminal Assets Bureau [1997]
IEHC 106
1/102
1/110
Goodwin v United Kingdom (2002) 35
EHRR 18
1/95
Gooderidge v the Queen, ECSC, Court
of Appeal for St Vincent & the Grenadines,
Criminal Appeal No. 13 of 1997
2&3/166
E
Eccles v Bourque [1975] 2 SCR 739
F v Switzerland (1989) 61 DR 171
2&3/251
303
cases cited
Gopalan v The State of Madras [1950]
INSC 14; AIR 1950 SC 27
1/59
Hornell v Newberger Products Ltd [1957]
1 QB 247
2&3/216
Gouriet v Union of Post Office Workers
& Ors [1977] UKHL 5
1/84
Huang v Secretary of State for the Home
Department [2007] UKHL 11
2&3/162
Goutam Kundu v State of West Bengal
and Anor [1993] INSC 290
1/87
Humphreys v Revenue and Customs
Commissioners [2010] EWCA Civ 56
2&3/154
Government of the Republic of South Africa
and Others v Grootboom and Others
[2000] ZACC 19; 2001 (1)
SA 46 (CC) 2&3/207, 209
Hunter v Southam Inc.
1984 CanLII 33 (SCC)
Granatino v Radmacher [2010]
UKSC 42
In re S (Minors) (Care Order: Implementation
of Care Plan) [2002] UKHL 10
1/38
Grauzinis v Lithuania (2002) 35
EHRR 7 para. 25
Griggs v Duke Power Co.,
401 U.S. 424 (1971) 2&3/202
1/66
2&3/146
Gurcharan Singh Bachittar Singh v Penguasa,
Tempat Tahanan Perlindungan Kamunting,
Taiping & Ors [2002] 4 CLJ 2491/67
Gurbaksh Singh Sibbia and Others
v State of Punjab [1980] INSC 70;
(1980) 2 SCC 565
1/59
Guzzardi v Italy (1980) 3 EHRR 333
1/63
H
Haida Nation v British Columbia
(Minister of Forests) [2004] 3 SCR 511
1/41
Haji Mohd Akhlaq v District Magistrate
1988 Supp (1) SCC 538
1/71
Hakimi v Legal Aid Commission (ACT)
[2009] ACTSC 48
2&3/186
Hammern v Norway (Application No
30287/96) (unreported) 11 February 2003,
BAILII: [2003] ECHR 75
2&3/189
Hinds v The Queen (1977) AC 195
1/120
Hirst v United Kingdom [2005] ECHR 681 1/84
1/89
I
Isayeva v Russia [2005] ECHR 128
1/50
Isayeva & Ors v Russia [2005] ECHR 129
1/50
Islam v Secretary of State for the Home
Department; R v Immigration Appeal
Tribunal, Ex p Shah [1999] 2 AC 629
1/106
Issa v Turkey [2004] ECHR 629
1/48
J
J v Secretary of State for the Home
Department [2007] Imm AR 73
1/106
Janata Dal v H.S. Chowdhary
& Ors AIR 1993 SC 892
1/84
Jang Bahadur v Principal Mohindra
College AIR 1951 Pepsu 5
2&3/164
Januzi v Secretary of State for the Home
Department [2006] UKHL 5
1/106
Jayendra Vishnu Thakur v State of
Maharashtra (2009) 7 SCC 104
2&3/183
Jeffrey Napoleon v Republic CS 1 of 1997
1/73
Johnson v Ontario (Minister of Revenue)
(1990) 75 OR (2d) 558 (CA)
1/92
Josephine Millette v Sherman Nicholls Civil
Appeal No. 14 of 2000
2&3/261
Julius Kamau Mbugua v Republic
(2010) eKLR
HKSAR v Chan Kau Tai [2006]
1 HKLRD 400
2&3/168
HKSAR v Li Man Tak [2006]
HKEC 1724
2&3/168
HKSAR v Wong Kwok Hung [2007]
2 HKLRD 621
K. L. Verma v State and Another
(1998) 9 SCC 348
2&3/168
Kallis v Turkey (2009) ECHR 1662
2&3/235
Kartar Singh v State of Punjab
(1994) 3 SCC 569
2&3/183
HM Advocate v McLean [2009]
HCJAC 97, 2010 S.L.T 73
1/27
Hockenjos v Secretary of State for
Social Security [2004] EWCA Civ 1749 2&3/155
304
1/4
K
1/59
Kashibai v Parwatibai [1995] INSC 528 2&3/255
Kats v Ukraine (2010) 51 EHRR 44
2&3/235
8 CHRLD
cases cited
Kearns v France (2010) 50EHRR33
2&3/192
Kelly v Jamaica Communication
No. 253/1987, CCPR/C/41/D/253/1987
(10 April 1991) 2&3/186
King v American Airlines 284 F. 3d 352
(2nd Cir. 2002) 2&3/263
Kruger v Coetzee 1966(2) SA 428 (A) 2&3/224
Kuijper v Netherlands (2005)
41EHRRSE 16
2&3/192
Kunnath v The State (1993) 1 WLR 1315 2&3/175
L
1/38
Lemeiguran & Ors v Attorney General
& Ors (Il Chamus Case)1/3
2&3/189
Leyla Sahin v Turkey (2007) 44 EHRR 5
1/9
Lingens v Austria [1986] 8 EHRR 407 2&3/165
M
M v A and Anor 1981 ZLR 306 (HC)
1/79
M v R, 1989 (1) SA 416 (OPD) 2&3/194
M v United Kingdom (1984) 36
DR 155
2&3/186
Mackin v New Brunswick
(Minister of Finance) 2002 SCC 13
MacMillan Bloedel Ltd. v Simpson,
1995 CanLII 57 (SCC) 1/110
2&3/170
Maggie Kaunda v R (High Court
Mzuzu Registry, Criminal Appeal
Number 8 of 2001, unreported) 2&3/249
Malafu v R [2002] Tonga LR 244
1/2
Malechkov v Bulgaria (57830/00),
European Court of Human Rights,
28 June 2007, unreported 2&3/136
Mana Turi, The State v Anton Turik
[1986] PNGLR 138
1/35
Maneka Gandhi v Union of India
(1978) 1 SCC 248
1/59, 2&3/183
Mario’s Pizzeria Ltd v Hardeo Ramjit
[2003] CA 146
2&3/215
Markovic v Italy (2007) 44 EHRR 52 1/47, 1/51
Matthew v Trinidad & Tobago [2004]
UKPC 33
8 CHRLD
McCann v United Kingdom (1995)
21 EHRR 97
1/48, 1/51
McDougall v Gall (1863) 1 M 1012
1/39
McMichael v United Kingdom (1995)
20 EHRR 205
1/38
Medvedyev v France [2010] ECHR 384
1/50
Meerabux v A-G of Belize [2005]
2 AC 513
Métromédia CMR Inc. v Tétreault,
reflex, [1994] R.J.Q. 777
Lebbink v The Netherlands (2004)
40 EHRR 417
Leutscher v The Netherlands (1997)
24 EHRR 180
McCall v McCall 1994(3) SA 201
(CPD)2&3/196
2&3/173
2&3/264
Michael Esty Ferguson v Her
Majesty the Queen [2008] 1 SCR 96
1/73
Mills v The Queen [1986] 1 S.C.R 863
1/110
Minister for Immigration and
Multicultural Affairs v Yusuf
(2001) 206 CLR 323
2&3/239
Minister for Immigration and Multicultural
and Indigenous Affairs v Nystrom
[2006] 228 CLR 566
2&3/238
Minister of Home Affairs and Another
v Fisher and Another [1980] AC 319
2&3/224
Minster of Justice v Hofmeyer, 1993(3)
SA 131 (A) 2&3/224
Minister van Polisie v Ewels 1975 (3)
SA 590 (A) 2&3/198
Modderklip Boerdery v President
Van Die RSA en Endere 2003 (6)
BC LR 638(T) 2&3/207
Mohd Amin bin Mohd Yusoh v Timbalan
Menteri Hal Ehwal Dalam Negeri &
Anor [1995] 1 CLJ 94
1/68
Mohd. Sukur Ali v State of Assam
(2011) 4 SCC 729
2&3/183
Molka v Poland
(Application No. 56550/00
(unreported) 11 April 2006
2&3/201
Morris v KLM Royal Dutch Airlines,
[2001] EWCA Civ 790
2&3/265
Moses v Trinidad & Tobago [1997]
AC 53
2&3/139
Mtikila v AG [2006] TZHC 5; (1996)
1 CHRLD 11)
1/104
Murphy v M (G) [2001] IESC 82
1/102
2&3/139
305
cases cited
Pentiacova v Moldova (Application
No. 14462/03 (unreported)
4 January 2005
N
NABD of 2002 v Minister of Immigration
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(2005) 79 ALJR 1142
Napier v Scottish Ministers [2005]
1 S.C. 307
1/107
2&3/137
2&3/201
People’s Union for Civil Liberties v Union
of India (Supreme Court of India, Writ
Petition No.196 of 2001, 28 November 2001,
unreported)1/113
Neulinger and Shuruk v Switzerland [2011]
1 FLR 122
2&3/123-124
Perry Matthew v The AG [2004]
HCA 3342
Nikolova and Velichkova v Bulgaria
(2009) 48 EHRR 915
2&3/235
Phillibert and others v the State of Mauritius
[2007] SCJ 27, 2007 SC 5274
1/73, 1/120
1/84
Pieretti v Enfield London Borough Council [2010]
EWCA Civ 1104
2&3/202
Norris v Government of the United States
of America (No. 2) [2010] All ER (D)
256 (Feb) 2&3/241-242
Pinto v Trinidad and Tobago Communication
No. 232/1987 CCPR/C/39/D/232/1987 (21
August 1990) 2&3/186
O
Plaintiff M61/2010E v The Commonwealth
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2&3/238
Njoya & Ors v Attorney General & Ors
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Ocalan v Turkey (2003) 37 EHRR 10
1/47
Ontario Human Rights Commission v
Borough of Etobicoke, 1982 CanLII
15 (SCC) 2&3/145
Ontario (Public Safety and Security)
v Criminal Lawyers’ Association,
2010 SCC 23
2&3/212
Oršuš v Croatia, App no 15766/03,
BAILII: [2010] ECHR 337
1/10
Orr v Norway (Application No 31283/04)
(unreported) 15 May 2008, BAILII:
[2008] ECHR 387
2&3/189
P
Porter v Magill [2001] UKHL 67,
[2002] 1 All ER 465
2&3/172-173
Powell v United Kingdom (2000)
30 EHRR CD 362
2&3/234
Pratap Singh v State of Jharkand
(2005) 3 SCC 55
2&3/127
Pratt and Morgan v Jamaica Communication
No. 210/1986 & 225/1987, CCPR/
C/35/D/225/1987 (7 April 1989) 2&3/186
President of the Republic of South Africa
v Hugo 1997 (4) SA 1 (CC) 2&3/157
Pro Swing Inc. v Elta Golf Inc.,
2006 SCC 52 (CanLII) P.A. Inamdar v State of Maharashtra
(2005) 6 SCC 537
1/55
Padfield v Minister of Agriculture, Fisheries
and Food (1968) AC 997
2&3/217
Pakendorf & Ors v De Flamingh 1982 (3)
SA 146 (A)
1/13
Palmer v Palmer, 1955 (3) (Orange
Free State Provincial Division)
SA 56 (OP)
2&3/194
Panacui v Legal Aid Society of Alberta
[1987] 80 AR 137
2&3/186
Paschim Banga Khet Majoor Samiti v State
of West Bengal (1996) 4 SCC 37
1/113
Patto v Minister for Immigration
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FCA 1554
2&3/239
Pearl v The Queen [2006] UKPC 5
2&3/139
306
2&3/218
Prophet v National Director of Public
Prosecutions Case CCT 56/05
Pt. Parmanand Katra v Union of India
(1989) 4 SCC 286
2&3/264
1/102
1/113
R
R (Al-Skeini) v Secretary of State for
Defence [2008] AC 153
1/47
R (Allen) (formerly Harris) v Secretary
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R (Bernard) v Enfield London
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2282 (Admin) 2&3/201
R (Gentle) v Prime Minister [2008]
UKHL 20
1/47
R (L (A Patient)) v Secretary of State
for Justice [2009] AC 588
1/49
8 CHRLD
cases cited
R (Middleton) v West Somerset Coroner
[2004] UKHL 10
1/48
R (Ullah) v Special Adjudicator [2004]
UKHL 26
1/51
R v Jacques [1996] 3 SCR 312
1/93
R v Jarvis 2002 SCC 73
1/93
R v Koumoutsidis 2006 NBCA 32
2&3/186
R v Annett (1984) 17 CCC (3d)
332 (Ont. CA)
R v Kuras [1964] PNGLR 18
1/35
1/93
R v Law 2002 SCC 10
1/93
R v Asante-Mensah 2003 SCC 38
1/96
R v Lee Kun (1916) KB 337 2&3/175
R v Belnavis [1997] 3 SCR 341
1/92
R v Luciano Monteiro Coelho [2008]
EWCA Crim 627
2&3/171
R v Big M Drug Mart Ltd 1985
CanLII 69 (SCC) 2&3/257-259
R v Black [1989] 2 S.C.R. 138
1/30, 1/31
R v Brydges [1990] 1 S.C.R. 190
1/30, 1/31
R v Manninen [1987] 1 S.C.R. 1233
1/29
R v Marin [1994] OJ No. 1280 (QL)
(Gen. Div.)
1/93
1/92
R v Burlingham [1995] 2 S.C.R. 206
1/30
R v Mellenthin [1992] 3 SCR 615
R v Caslake [1998] 1 SCR 51
1/93
R v Morin [1992] 1 S.C.R. 771
R v Collins [1987] 1 SCR 265
1/95
R v Oakes [1986] 1 SCR 103
R v Conway [2010] 1 SCR 765
1/41
R v Oickle [2000] 2 S.C.R. 3
1/30
R v Perello 2005 SKCA 8
1/93
1/48
R. v Plant 1993 CanLII 70 (SCC)
1/90
R v DeWolfe 2007 NSCA 79
1/95
R v Ross [1989] 1 S.C.R. 3
1/30
R.v Edwards 1996 CanLII 255 (SCC)
1/89
R v Salituro 1992 (8) CRR (2d) 173
1/57
R v Feeney [1997] 2 SCR 13
1/93
R v Franks 2003 SKCA 70
1/93
R v Secretary of State for the Home
Department [1995] 2 AC 513
R v Friesen 101 CCC (3d) 167
1/29
R v Sewell 2003 SKCA 52
R v Genest [1989] 1 SCR 59
1/95
R v Silveira [1995] 2 SCR 297
1/97
1/95
R v Singh [2007] 3 S.C.R. 405
1/30, 1/31
R v Coroner for North Humberside and
Scunthorpe, Ex p Jamieson [1995] QB
R v Gimson [1991] 3 SCR 692
R v Gloucestershire County Council
Ex p Barry [1997] AC 584
R v Smith (1987) 34 CCC (3d) 97
2&3/201
R v Golden 2001 SCC 83
1/93, 1/111
R v Grant 2009 SCC 32
1/94, 1/97, 1/110
R v Hall 2002 SCC 64
1/17
R v Hamilton, 2005 SCC 47
(CanLII)2&3/169
R v Harris (1988) 17 NSWLR 158
2&3/270
R v Harrison 2009 SCC 34
1/92
R v Heemi (1998) 16 CRNZ 221 (CA) 2&3/186
R v Hebert [1990] 2 S.C.R. 151
1/29
R v Inland Revenue Commissioners,
ex p National Federation of Self Employed
and Small Businesses Ltd [1981] UKHL 2
R v Ireland [1998] AC 147
8 CHRLD
1/84
2&3/272
R v Tan [1983] QB 1053
R. v Tessling 2004 SCC 67 (CanLII)
R v Tran (1994) 2 SCR 951
2&3/166
1/16
2&3/217
1/93
1/120
2&3/271
1/89
2&3/175
R v Wizzard (Barry) [2007] UKPC 21 2&3/139
R (Mullen) v Secretary of State for
the Home Department [2004]
UKHL 18
2&3/188
R (on the application of ProLife Alliance)
v BBC [2003] UKHL 23
2&3/162
Radkov v Bulgaria (18382/05),
European Court of Human Rights,
10 February 2011, unreported
2&3/136
Rajendra Singh v State of Uttar Pradesh
(2007) 7 SCC 378
1/71
Ramkanya Bai v Bharatram (2010)
1 SCC 85
1/87
307
cases cited
Ramsarran v Attorney General of Trinidad
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1/66
S v Makwanyane & Anor [1995]
ZACC 3, (1995 (6) BCLR 665
Rattigan & Ors v Chief Immigration Officer,
Zimbabwe & Ors, 1995 (2) SA 182
2&3/193
S v Toms and S v Bruce [1990] ZASCA 38;
1990 (2) SA 802 (AD) AT 806 H-807c 1/120
Re Application No. 127/55 24 ILR 368 2&3/186
S v Tsabalala 1998 (2) SACR 259 (C)
1/57
Re B (A Minor) (Disclosure of Evidence)
[1993] 1 FLR 191
2&3/130
S.P. Gupta v President Of India & Ors
AIR 1982 SC 149
1/84
Re B (Disclosure to Other Parties) [2001]
2 FLR 1017
2&3/131
Saadi v Italy (European Court of Human
Rights [GC], Appl. No. 3720/06,
28 February 2008
1/73
Salauddin Abdulsamad Shaikh v State of
Maharashtra [1995] INSC 820; (1996)
1 SCC 667
1/59
Salduz v Turkey (2008) 49 EHRR 421
1/27
Re Certification of the Constitution of the
Republic of South Africa [1996] ZACC 26 1/120
Re D (A Child) (Abduction: Rights
of Custody) [2006] UKHL 51
2&3/125
Re Global Communications Ltd and Attorney
General for Canada (1984) 44 OR (2d) 609 1/15
Re Kevin (2001) FamCA
Re P (A Barrister) [2005] 1 WLR 3019
(Visitors to the Inns of Court) Re Petition of MT Somare [1981]
PNGLR 265
1/4
2&3/173
1/23
Re S (Identification: Restrictions on
Publication) [2004] UKHL 47
2&3/130
Re T [1975] 2 NZLR 449
2&3/271
Re T (Adult: refusal of medical treatment)
(1992) 4 ALL ER 649 (CA) 2&3/248
Regina v H [2004] UKHL 3
1/103
Renolde v France (2009) 48 EHRR 42 2&3/235
Republic v Hughes (2002) 2 AC 284
1/7
Reyes v The Queen (2002) 2 AC 235
1/7
Ringeisen v Austria (No. 1) (1971)
1 EHRR 455. Roach v Electoral Commissioner
(2007) 233 CLR 162
Road Transport Board v Northern
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2&3/179
1/82
2&3/157
Rookes v Barnard [1964] UKHL 1,
[1964] A.C. 1129
1/69, 2&3/215
Rushiti v Austria (2001) 33 EHRR 56 2&3/189
Rushworth v Taylor (1842) 3 QB 699
2&3/217
S
S v Dlamini; S v Dladla and Others;
S v Joubert; S v Schietekat [1999] ZACC 8 1/57
308
1/116, 1/121
Samwel Rukenya Mburu v Castle Breweries,
Kenya, Nairobi HCC 1119 of 2003
1/5
Sauvé v Canada (Attorney General)
[2002] 3 SCR 519
1/84
Sara Keays v Guardian Newspapers
Limited [2003] EWHC 1565 (QB)
1/12
Savage v South Essex Partnership
NHS Foundation Trust [2009]
AC 681
1/49, 2&3/234
Secretary, Department of Social
Security v SRA [1993] FCA 573;
(1993) 43 FCR 299
2&3/270
Secretary for Justice v Yau Yuk Lung (2007)
10 HKCFAR 335
2&3/151
Secretary of State for the Home Department
v AH [2008] EWHC 1018 (Admin)
1/63
Secretary of State for the Home Department
v JJ [2008] 1 AC 385
1/63
Sekanina v Austria (1994) 17
EHRR 221
2&3/189
Sentges v The Netherlands (2003)
7 CCLR 400
2&3/201
Shafiq Ahmed v District Magistrate,
Meerut (1989) 4 SCC 556
1/70
Sharda v Dharmpal (2003) 4 SCC 49
1/87
Shifeta v Munamava & Ors (P)
I 2106/2006, unreported judgment of the
High Court dated 5 December 2008
1/14
Sidhu v British Airways, [1997]
1 All ER 193
2&3/263-265
Silkin v Beaverbrook Newspapers Limited
(1958) 2 ALL E.R 516
1/12
8 CHRLD
cases cited
Silver & Ors v the United Kingdom [1983]
5 EHRR 347
2&3/164
Simon Prophet v the National Director
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Simon’s Town Municipality v Dews
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2&3/224
Smith v Kvaerner Cementation
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Civ 242
2&3/174
Smith v Wade 461 U.S 30 (1983)
1/110
Söderbäck v Sweden (2000) 29
EHRR952&3/192
Soering v United Kingdom
(1989) 11 EHRR 439
1/51
State v Geoffrey Mwilima and Bernard
Mucheka (High Court of Namibia,
CC 32/2001, 12 December 2002,
unreported)1/57
State of Mauritius v Khoryatty
[2006] UKPC 13
1/73
State of Punjab v Sukhpal Singh
(1990) 1 SCC 35
1/70
State of Rajasthan v Talib Khan (1996)
11 SCC 393
1/71
Stec v United Kingdom (2006)
43 EHRR 47, (2006) 43
EHRR 1017
2&3/149, 2&3/155
Stott v Thomas Cook Tour Operators Ltd.
and others [2012] EWCA Civ 66
2&3/263
Sunita Devi v State of Bihar and Another
(2005) 1 SCC 608
1/59
Susan Kigula & Ors v A.G. (unreported)
Constitutional Petition 6 of 2003
1/7
Syndicat Northcrest v Amselem,
2004 SCC 47 (CanLII) 2&3/257
T
T.M.A. Pai Foundation v State of
Karnataka (2002) 8 SCC 481
Tu’itavake v Porter [1989] Tonga LR 14
1/53
1/2
Tamara Merson v The AG of the Bahamas
et al, PC Appeal No. 61 of 2003
2&3/261
Taunoa v Attorney-General [2007]
NZSC 70
Tavake v Kingdom of Tonga [2008]
TOSC 14
8 CHRLD
1/110
1/2
Teesdale v Trinidad and Tobago
Communication No. 677/1996, CCPR/
C/74/D/677/1996 (1 April 2002) 2&3/186
The State v David Yakuye Daniel (2005)
N28691/35
The State v Joanes Mesak (2005) N2853
1/35
The State v Kwambol Emogol (1977) N91
1/35
The State v Michael Balana (2007)
CR 332 of 2003
1/35
The State v Suk Ula (No. 1) [1975]
PNGLR 123
1/35
Thompson v Commissioner of Police of the
Metropolis [1998] QB 498
2&3/215
Thomson Newspapers Ltd v Canada
(Director of Investigation and Research,
Restrictive Trade Practices Commission),
1990 CanLII 135 (SCC) 2&3/257
Toronto Star Newspapers Ltd v
Canada 2009 ONCA 59
1/18
U
Uganda Law Society v Attorney General
[2006] 5 LRC 514
1/33
Union of India v Laishram Lincola
Singh @ Nicolai (2008) 5 SCC 490
1/71
Universal Church of the Kingdom of God
v Namzim Newspaper (Pty) Ltd t/a
The Southern Times 2009 (1) NR 65 (HC) 1/14
University of British Columbia v Berg,
1993 CanLII 89 (SCC) Unni Krishnan, J.P. v State of A.P.
(1993) 1 SCC 645
2&3/145
1/55
V
Vellino v Chief Constable of Greater
Manchester [2001] EWCA 1249
2&3/217
Verheem v Road Accident Fund
2012 (2) SA 409 (GNP) 2&3/199
W
Wall v Livingston [1982] 1 NZLR
734 (CA) Walsh v The Director of the Assets
Recovery Agency 2005 NICA 6
2&3/132
1/102
Walter v Alltools (1944) 61 TLR 39
2&3/215
Watan Party v Federation of Pakistan
PLD 2011 Supreme Court 997
2&3/219
309
cases cited
Weixelbraun v Austria (2003)
36 EHRR 45
2&3/189
Wheeler v Wheeler 2011 (2)
SA 459 KZP
2&3/195
Whihair v Attorney General [1966]
2 NZLR 24
2&3/217
Wright George v Spencer Antigua
Civil Appeal No. 5 of 1978
2&3/166
310
X
X v Republic of Germany (1976)
6 DR 114
2&3/186
Z
ZH (Tanzania) [2011] All ER (D)
02 (Feb)
2&3/241-242
8 CHRLD
constitutions and legislation
Constitutions
and
legislation
Antigua &
Barbuda
Constitution
Section 3(a) 2&3/166
Section 5(6) and 5(7) 2&3/166
Section 15(1) 2&3/166
Australia
Commonwealth Electoral Act 1918
(Cth) as amended by the Electoral
and Referendum Amendment
(Electoral Integrity and Other
Measures) Act 2006
Section 101
1/81
Section 102(4)
1/81
Section 102(4AA)
1/81
Section 155
1/81
Commonwealth of Australia
Constitution Act
Section 7
1/81
Section 24
1/81
Section 30
1/81
Section 51(xxxvi)
1/81
Freedom of Information
Act 1982
Section 30
1/44
Section 50(4)
1/43
Gender Reassignments
Act 2000
Section 14
2&3/270
Section 15
2&3/268
Section 21
2&3/269
Migration Act 1958
8 CHRLD
Section 46(A) 2&3/237
Section 189(2) and 189(3) 2&3/237
Section 195(A) 2&3/237
Section 198(2) and 198(A) 2&3/237
311
constitutions and legislation
Immigration (Guardianship of
Children) Act 1946
Constitution Act 1982
Section 6
2&3/237
Section 6(A) 2&3/237
Victorian Civil and Administrative
Tribunal Act 1998
Section 148(1)
1/43-45
Section 35
1/40
Criminal Code 1985
Section 29
1/97
Section 517
1/15
Education Act
Section 222
The Bahamas
2&3/256
Montreal Convention
Article 29
Constitution
2&3/263
Article 20(2)(b) 2&3/171
Official Languages Act 1985
Judges Rules
2&3/171
Section 23(1) 2&3/262
Section 77(4) 2&3/263
Part IV
2&3/263
Canada
Privacy Act 1985
Access to Information Act 1985
Section 2
2&3/211
Section 3
2&3/210
Section 4
2&3/210
Section 19(1) 2&3/210
Schedule 1
2&3/210
Administrative Tribunals Act,
S.B.C 2004, c.45
Section 59
Section 3
2&3/211
Section 21
2&3/213
Quebec Charter of human rights
and freedoms, R.S.Q., c. C–12
Section 3
Utilities Commission Act 1996
Section 71
2&3/146
2&3/256
1/40
Alberta’s Electric Utilities Act 2003 1/89
Hong Kong
British Columbia Human Rights
Code 1996
Article 25
2&3/150
Article 30
2&3/168
Article 31
2&3/150
Article 33
2&3/150
1/15
Article 36
2&3/150
2&3/256-258
Article 145
2&3/150
Section 8
2&3/144
Canada Evidence Act 1985
Section 38
2&3/169
Charter of Rights and Freedoms
Section 2(a) Basic Law
Bill of Rights
Section 7
2&3/169
Section 8
1/89, 1/91, 1/95, 1/101
Article 14
2&3/168
1/29-31
Article 22
2&3/150
Section 10(b)
Section 24
1/101
Code of Conduct Regulation
1/89
Constitution Act 1867
Section 96
312
2&3/169
Interception of Communication
and Surveillance Ordinance,
Cap. 589
2&3/169
Marriage Ordinance
Cap. 179
2&3/250-252
8 CHRLD
constitutions and legislation
Indian Penal Code
India
Chattisgarh Police Act (CPA) 2007
Section 23(1)(h) and 23(1)(i) 2&3/229
Children (Placing of Labour)
Act 1933
Section 302
2&3/182
Section 307
2&3/182
Juvenile Justice (Care and
Protection of Children) Act 2000
2&3/128
Section 7
Article 14
2&3/141
Juvenile Justice (Care and
Protection of Children) Rules 2009
Article 15
1/78, 2&3/142
Rule 12
Article 21
1/113, 2&3/127
Motor Vehicles Act
Constitution
Article 21A
2&3/128
Article 22
1/20, 1/70-71, 2&3/184
Article 30
1/52, 2&3/141
Article 32
2&3/128
Article 47
2&3/203
Delhi Act 80 of 2007
Section 12(1)(b) 2&3/141
Section 14
2&3/142
Delhi School Education Act 1973
Section 2
1/53
Section 3(3)
1/53
Section 20
1/53
Section 21
1/53
Section 64(1)(b)
1/52
Employment of Children’s
Act 1938
2&3/128
Evidence Act, 1872
Section 112
1/87
Section 137
2&3/183
Section 138
2&3/183
Section 139
2&3/183
Section 145
2&3/183
Explosive Substances Act, 1908
Section 3
2&3/182
Section 4(b) 2&3/182
Hindu Adoptions and Maintenance
Act 1956
Section 7
8 CHRLD
2&3/254
2&3/126
2&3/126
Section 166
1/77
National Security Act 1980
Section 3(2)
1/70
Orissa (State) Commission
for Women Act 1993
Section 101
Prevention of Immoral
Traffic Act
1/86
2&3/128
Right to Information Act 2005 2&3/126
Special Marriage Act 1954
Section 25(iii)
1/86
Kenya
Anti-Counterfeit Act 2008
Section 2
2&3/230
Section 32
2&3/230
Section 34
2&3/230
Births and Deaths Act
1/4
Civil Procedure Act (Cap. 21,
Laws of Kenya, revised in 2009)
Section 1A
1/99
Section 1B
1/99
Section 3A
1/99
Civil Procedure Rules
Order I, rule 8
1/3
Code of Criminal Procedure 1973
Section 438
1/58-61
Section 439
1/58
313
constitutions and legislation
Article 259
Constitution
Article 1
1/99
Article 2
1/99
Article 3
1/99
Article 2(5) and 2(6) Article 10
Article 11(1) 2&3/206
2&3/153
2&3/276
1/99
Rule 20
2&3/153
Rule 21
2&3/153
Section 19 of the Sixth
Schedule
2&3/153
Section 24(2) of the Sixth
Schedule
2&3/153
Article 19
1/59
Constitution of Kenya
Review Act 2008
Article 21
1/59
Section 39(3)
1/84
Article 23(1) 2&3/134
Constitution of Kenya (Supervisory
Jurisdiction and Protection of the
Fundamental Rights & Freedoms
of the Individual) High Court
Practice and Procedure Rules
Article 23(3)(c) 2&3/153
Rule 11
1/3
2&3/206
Rule 12
1/3
Article 22(1) Article 23
Article 24
2&3/134
1/99
Article 26(1) 2&3/231
General Clauses Act 1897
Article 27
2&3/134
Industrial Property Act 20012&3/230
Article 27(3) 2&3/153
International Crime Act 2008
Article 28
2&3/231
Section 4(1)
Article 43
1/84, 2&3/231
Article 47(1) and 47(2) Article 49 Article 60(1)(f) Section 65(3)
Section 70
2&3/206
2&3/134
2&3/274
1/3
1/4, 1/6
1/58
1/99
Kenya Review Act
Section 6
1/84
Law of Succession Act (Cap 160)
Section 29
National Accord and
Reconciliation Act
2&3/275
2&3/153
Penal Code
Section 71
1/6
Section 74
1/4, 1/6
Section 203
1/6
Section 77
1/6
Section 204
1/6, 1/7
Section 82
1/4
Prisons Act
1/4
Section 84
1/3, 1/5
Prisons Rules
1/4
Section 85(6)
1/3
Article 95(2) 2&3/153
Lesotho
Article 156(1) 2&3/153
Constitution
Articles 159-170 (inclusive)
Article 166(1)(a) Article 258(1) Article 258
314
1/99
Section 18
2&3/156
2&3/153
Section 19
2&3/156
2&3/134
Court of Appeal Rules 2006
1/99
Rule 19(1) 2&3/156
8 CHRLD
constitutions and legislation
Rule 19(2) 2&3/156
Rule 20(3) 2&3/156
High Court Rules 1980
Rule 17(1)(c) 2&3/156
Rule 20(1) 2&3/156
Legal Practitioners Act No. 11
of 1983
2&3/156
Magistrate’s Court Rules 1996
Rule 49(1)(a) 2&3/156
Malawi
Mental Health Act 1973
Section 29(4)-29(7) 2&3/223
New Zealand
Bill of Rights Act 1990
Section 8
2&3/132
Section 24(c) and 24(f) 2&3/185
Section 24(g) 2&3/175
Section 25(a) and 25(e) 2&3/175
Contraception, Sterilisation
and Abortion Act 1977
Communications Act 1998
2&3/249
Section 36
Section 21
2&3/249
Health Information
Privacy Code
Section 44(1) and (2) 2&3/249
Rule 11
Constitution
Legal Services Act 2011
Malaysia
Privacy Act 1993
Federal Constitution
Article 5(1)
1/68
Article 151(1)
1/68-69
2&3/246
2&3/185
2&3/246
Pakistan
Code of Criminal Procedure
Section 161
Internal Security Act 1960
2&3/132
2&3/220
Section 8
1/67
Constitution
Section 11(2)(b)(i)
1/67
Article 9
2&3/219
Section 12
1/67
Article 14
2&3/219
Article 15
2&3/219
Article 18
2&3/219
Article 24
2&3/219
Article 32
2&3/219
Article 63(1)(g) 2&3/220
Article 140(A) 2&3/219
Mauritius
Constitution
2&3/175
Namibia
Constitution
Article 7
1/56-57, 2&3/224
Article 8
2&3/224
Article 10
1/56-57
Article 11
2&3/223
Article 18
2&3/223
Article 21(1)(a) and 21(2)
1/13
Article 66
1/13
8 CHRLD
Papua New
Guinea
Constitution
Section 11
Section 18(1)
1/23
1/22-23
315
constitutions and legislation
Section 42(4)
1/35
Section 184(1)
1/23
Forestry Act 1991
1/22
Forestry (Timber Permits
Validation) Act 2007
1/22
Supreme Court Rules 1983
O 4 rule 1, Form 1
1/22-23
Samoa
Constitutional Court Application,
Contravention, Enforcement or
Interpretation of the Constitution
Rules 1994
Rule 3(3)
1/72, 1/119
Elections Act Cap 68A
Section 5
2&3/244
Section 6(b) 2&3/244
Misuse of Drugs Act
Constitution
Article 4
2&3/216
Article 6
2&3/216
Article 7
2&3/216
Article 9
2&3/172
Article 14
2&3/217
Immigration Act 2004
Section 29
2&3/216
Section 29
1/119
Second Schedule
1/119
Penal Code
Section 184
2&3/163
Section 27A(1)(c)(i)
1/72
Section 291(a)
1/72
Proceeds of Crime
(Civil Confiscation) Act 2008
Section 2
1/101
The Seychelles
Section 3(3)
1/101
Section 4(3)
1/101
Anti-Money Laundering (Amendment)
Act 1998
Section 31 1/101
Section 39
1/101
Section 3(9)(c)
1/101
Constitution
Article 1
1/72, 1/119
Article 16
1/72, 1/119
Article 19
1/101, 2&3/244
Article 22
2&3/163
Article 24(1)(b) and (c) 2&3/244
Article 26
1/101
Article 27
1/101
Article 51(1) 2&3/244
Article 85
1/101
Article 89
1/101
Article 113
2&3/244
Article 114
2&3/244
Article 119(2)
1/72, 1/119
Article 130(5)
2&3/244
316
South Africa
Broadcasting Act
Section 6(3) 2&3/160
Section 10(1)(d) 2&3/159
Children’s Act 38 of 2005
Section 7
2&3/196
Section 18
2&3/195
Section 23
2&3/193
Section 24
2&3/194
Constitution
Section 25
2&3/208
Section 26
2&3/208
Section 27
2&3/208
Section 29
2&3/208
Section 36
1/24
8 CHRLD
constitutions and legislation
Correctional Services Act 1998
Section 136
1/116
Criminal Procedure Act 1977
Criminal Law (Amendment)
Act 1997
Section 2
2&3/138
Electronic Communications Act 2&3/160
Indictable Offences
(Preliminary Enquiry) Act
(No. 12 of 1917 as amended)
Housing Act 1997
Summary Courts Act 4:20
Section 50(1), 50(2) and 50(6) Section 9
2&3/222
2&3/208
Section 72
2&3/261
Section 130(2) Housing Code 2009
Chapter 12
1/65
2&3/260
2&3/208
Tonga
Section 4(1) 2&3/208
Constitution
Section 4(2)(j) 2&3/208
Clause 1
1/2
Section 8(2) 2&3/208
Clause 14
1/2
Municipal Systems Act 2000
Criminal Offences Act
Prescription Act
Section 12(3)
1/24
Section 31(6)
Section 16
1/24
Uganda
Prevention of Illegal
Eviction from and Unlawful
Occupation of Land Act
2&3/207
Promotion of Administrative
Justice Act 3 of 2000
Section 6(2)(d) 2&3/160
Road Accident Fund Act 56
of 1996
Section 17
Section 23(1)
1/24
Anti-Terrorism Act
1/32
Constitution
Article 23(1)
1/33
Article 23(6)
1/33
Article 24
1/33
Article 28 1/33-34
2&3/197
Article 29(1)(a)
1/20
1/24
Article 43(2)(c)
1/20
Swaziland
Constitution
Article 27
1/2
2&3/193
Article 44
1/20, 1/33-34
Article 45
2&3/266
Article 50
2&3/267
Article 126
1/33
Trinidad & Tobago
Article 128(1)-(3)
1/33
Article 137(3)(4) 2&3/266
Constitution
Article 274
Section 4
2&3/261
Section 5
1/65-66, 2&3/261
Section 6
2&3/261
Criminal Law Act 1979
Section 2A
8 CHRLD
2&3/138
1/20
Constitutional Court (Petitions
and References) Rules,
SI No. 91 of 2005
Rule 3
Firearms Act
2&3/266
1/32
317
constitutions and legislation
Government Proceedings Act Cap 77
Disability Discrimination Act 1995
Section 2
2&3/267
Section 21E(1) 2&3/201
Section 3
2&3/267
Section 49(A) 2&3/201
Judicature Act
Education Act 2002
Section 36
2&3/267
Section 142
Section 37
2&3/267
Section 38
2&3/267
Education (Prohibition from Teaching
or Working with Children) Regulations
2003 (SI 2003/1184)
Penal Code Act 1950 (Ch 120)
2&3/178
Regulation 4
2&3/178
Section 39(1)(a)
1/20
Employment Relations Act 1999
Section 40(i)(a)
1/20
Section 10
2&3/180
Section 42
1/20
Extradition Act 2003
2&3/240
Section 43
1/20
Family Law (Scotland) Act 2006
Section 44
1/20
Section 23
1/38
United Kingdom
Housing Act 1996
Section 177(1) and 177(1)(A) 2&3/272
Adoption and Children
(Scotland) Act 2007
Section 198
2&3/273
Section 31(3)(d) 2&3/192
Child Tax Credit Regulations
2002 (SI 2002/2007) 2&3/154
Human Rights Act 1998
Section 6 1/27, 1/46, 2&3/161
Section 7(5)
Children (Scotland) Act 1995
Schedule 1
Section 93(2)(b)
Mental Health Act 1983
Community Care Assessment
Directions 2004
1/37
Section 5(4) Section 15
318
2&3/232
Prisoners’ Access to the Media
(PSI 37/2010) 2&3/187
Safeguarding Vulnerable Groups
Act 2006
2&3/178
Criminal Procedure (Scotland)
Act 1995
Section 14
2&3/161
2&3/201
Criminal Justice Act 1988
Section 133
1/9
2&3/161
Scotland Act 1998
1/27-28
1/28
Section 29(2)(d) Section 57(2) and 57(3)
2&3/192
1/27
8 CHRLD
international and regional standards
International
and
regional
standards
International
Treaties
Convention on the Elimination of
All Forms of Discrimination against
Women2&3/230
Article 12
1/113
Article 14
1/113
Convention on the Rights of the Child
Article 3.1
2&3/123
Article 24
1/113
Article 27
1/113
Convention Relating to the Status of
Refugees 1951, as amended by the
Protocol relating to the Status of
Refugees 1967
2&3/237
Article 33(1) read with Article 1A(2)
1/106
Hague Convention on the Civil Aspects
of Child Abduction 1980
Article 12
2&3/123
Article 13b
2&3/123
International Convention against
Torture and other Cruel, Inhumane or
Degrading Treatment or Punishment 1/2, 1/73
International Covenant on Civil
and Political Rights
Article 14
2&3/186
Article 17
2&3/252
Article 23(2) 2&3/252
Article 25
1/84, 2&3/151
Article 26
2&3/151
International Covenant on Economic,
Social and Cultural Rights
2&3/230
Article 10
1/113
Article 12
1/113
Rome Statute of the International Criminal
Court 1998
Article 119(1)
United Nations Convention on the
Rights of Persons with Disabilities
1/99
2&3/148
Universal Declaration of Human Rights
8 CHRLD
319
international and regional standards
Article 1
1/73
Article 5
1/73
Article 11
2&3/184
Article 25
1/113
Regional
Treaties
European Convention on Human Rights
Article 1
1/47-51
Article 2
1/46-51, 2&3/232, 2&3/234-235
Article 3
1/73, 2&3/130, 2&3/136-137, 2&3/233
Article 5
1/63, 1/66
320
Article 6
1/27-28, 1/37, 2&3/130-131,
2&3/178-182, 2&3/186-189
Article 8
1/37-38, 1/63, 2&3/124-125,
2&3/130-131, 2&3/136-137, 2&3/192,
2&3/200-201, 2&3/232,
2&3/241-242, 2&3/251-252
Article 10
2&3/161-163
Article 12
2&3/251-252
Article 14
1/37, 2&3/ 148-149, 2&3/155
Article 34
2&3/234
Article 2 of Protocol No. 11
1/9, 1/10
Other instruments
Magna Carta, 1215
2&3/127
8 CHRLD
work
Commonwealth
Human Rights Law
Digest
interights
Suite 1.05
New Loom House
101 Back Church Lane
London
E1 1LU
UK
Tel:
+44 20 7264 3989
Fax:
+44 20 7481 9911
E-mail:
ir@interights.org
Website:
www.interights.org
interights provides leadership and support in the legal
protection of human rights internationally. It works to
ensure that human rights standards are protected and
promoted effectively in domestic courts and before regional
and international bodies, contributing to the development
of a cumulative and progressive interpretation of
international human rights law.
Its three main working methods, which are mutually
­reinforcing, are:
1Providing expertise and support in strategic human
rights litigation in priority thematic areas and other
issues of particular regional significance
1Building legal capacity of lawyers and judges through
targeted training in human rights law, internships and
through collaborative litigation efforts with local partners
1Disseminating practical legal information that
enhances the use of human rights law and practice
The thematic areas it tackles, taking into account shifting
areas of threat and new opportunities for jurisprudential
development, are:
1Economic and social rights
1Equality
1Security and the rule of law
It works regionally in Africa, Europe (with a focus on
South Eastern, Central and Eastern Europe and the
former Soviet Union), the Middle East and North Africa
(MENA), South Asia and the Commonwealth.
interights holds consultative status with the United
Nations’ Economic and Social Council, the Council of
Europe and the African Commission on Human and
Peoples’ Rights. It is accredited with the Commonwealth
Secretariat and is authorised to present collective complaints under the European Social Charter.
interights is a registered charity in the UK (charity
number 292357) and a company limited by guarantee
(incorporation number 1927581).
8 CHRLD
iii