Human Rights Case Summaries

Morales, R (on the application of) v The Parole Board & Ors [2011] EWHC 28 (Admin) (14 January 2011) 

In this case the High Court of England and Wales decided that the actions of the Parole Board, and the Secretary of State for Justice (‘Secretary of State’) caused an ‘undue delay’ in allowing Mr Jan Morales to test the legality of his detention before a court. Accordingly, the High Court held that there had been an infringement of Mr Morales’ rights under Article 5 (4) of the European Convention of Human Rights (‘ECHR’).

Stellato v The Ministry of Justice [2010] EWCA Civ 1435 (14 December 2010)

The England and Wales Court of Appeal recently considered the application of art 5.1(b) of the European Convention on Human Rights (the right to liberty) to the detention of a person released on license and subsequently on bail, who refused to comply with the license and bail conditions imposed on him.

In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010)

The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent with the right to liberty under s 18 of the ACT Human Rights Act 2004 (‘HR Act’).  Section 9C of Bail Act requires those accused of murder, certain drug offences and ancillary offences, to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken.  This was found to be inconsistent with the requirement in s 18 of the HR Act that a person awaiting trial not be detained in custody as a ‘general rule’.

Consistent with the dialogue model of the ACT HR Act, the law declared incompatible continues to operate in its original form, and power rests in the Legislative Assembly alone to amend it.

Cadder v Her Majesty's Advocate (Scotland) [2010] UKSC 43 (26 October 2010)

The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal representation, are incompatible with the right to a fair trial.  While this decision is contrary to the previous UK position, it is consistent with the European Court of Human Rights decision in Salduz v Turkey (2009) 49 EHRR 19.

King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010)

The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights.  The Court held that a prisoner does have a civil right to association, but that a temporary restriction on this right may not constitute an interference with the right.  It also held that the lack of impartiality of an adjudicator of disciplinary proceedings did not necessarily amount to a lack of procedural fairness.

Al-Sadoom and Mufdhi v United Kingdom [2010] ECHR 282 (2 March 2010)

The European Court of Human Rights has held that the United Kingdom breached a number of its obligations under the European Convention on Human Rights by handing over two suspected insurgents (the applicants) to Iraqi authorities.

Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February 2010)

On 25 February 2010, the Full Court of the Federal Court delivered a significant judgment that will allow the Court to consider the Mamdouh Habib’s claims against the Commonwealth for torts of misfeasance in public office and intentional but indirect infliction of harm.

Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 (11 January 2010)

The Court of Queen’s Bench of Alberta has declared that conditions under which untried prisoners were held in Edmonton Remand Centre (‘ERC’) pending trial for conspiracy to traffic illicit drugs resulted in a breach of their right not be deprived of liberty except in accordance with the principles of fundamental justice (s 7), the right not to be subjected to cruel and unusual treatment or punishment (s 12) and the right to equality before and under the law without discrimination (s 15).

Morro & Ahadizad v Australian Capital Territory [2009] ACTSC 118 (10 September 2009)

Gray J of the Supreme Court of the Australian Capital Territory found that s 18(7) of the Human Rights Act 2004 (ACT) (‘ACT Act’) creates an independent statutory right to compensation for unlawful arrest or detention.  On the facts before him, however, he found that the tort of false imprisonment provided a sufficient remedy and that additional public law compensation under the Human Rights Act was not necessary.

Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009)

The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and Responsibilities Act.  Significantly, Judge Ross held that the proper construction of s 11 of the Serious Sex Offenders Monitoring Act 2005, as amended by legislation passed following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice, was not compatible with human rights.

Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009)

The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining expert evidence will not justify extended pre-trial detention, and that prohibition of contact with family members who are witnesses may be a permissible limitation on the right to family.

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009)

The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.

DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009)

The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic).