Right to Life: When is the State Obliged to Fund Legal Representation at Coronial Inquests?

Legal Services Commission v Humberstone, R (On the application of) [2010] EWCA Civ 1479 (21 December 2010)

The England and Wales Court of Appeal has held that the state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life.  This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.

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Evictions and Human Rights in VCAT

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)

A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a Notice to Vacate (‘NTV’) and in making an application for possession.  Member Dea assessed the scope of the rights to privacy and to the protection of families and children and she concluded that neither of these rights had been engaged.  She held that even if such rights had been engaged, the Director had given proper consideration to, and had acted compatibly with, them in seeking to evict the respondent.  The application for possession was upheld.

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High Court Recognises that Constitution ‘Embeds’ a Right to Vote and a ‘Fully Inclusive Franchise’ in Landmark Constitutional Case

Rowe v Electoral Commissioner [2010] HCA 46 (15 December 2010)

The case, which was heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.  The Amendment Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details.  Previously, the electoral roll remained open for a period of seven days after the issue of the writ.  The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity. 

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‘Human Rights are Not Just for the Virtuous’: Will Criminal Conduct Prevent a Claim for Breach of Human Rights?

Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010)

This case concerned the death in custody of Anthony Daniel, a drug smuggler and user.  Mr Daniel's widow and father brought a claim under arts 2 and 3 of the European Convention on Human Rights against Her Majesty's Revenue and Customs, the UK's customs and tax department.  The England and Wales Court of Appeal held that the 'criminality' defence – which makes a claim brought to secure or enforce the benefit of a criminal transaction non-justiciable – does not operate to prevent human rights claims under the European Convention.

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UK Court of Appeal Considers Payment of Damages for Wrongful Imprisonment

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

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

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Right to Liberty and Review of Detention

EWCA Civ 1434 (14 December 2010)

The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system.  In Faulkner, the Court concluded that where a prisoner’s parole is unjustifiably delayed, they may be entitled to compensation under art 5(4) of the European Convention on Human Rights.  The decision may have ramifications for Victorian prisoners whose parole is ‘unjustifiably delayed’.

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Permissible Use of Force and the Investigation of Police-Related Deaths

Bennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)

An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force.  In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems.  Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed.  This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

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Human Rights Interpretation and Reverse Onus Provisions: Is a Human Rights-Compatible Interpretation ‘Possible’?”

Webster v R [2010] EWCA Crim 2819 (01 December 2010)

The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:

  • the interpretation of the right to a ‘Fair Hearing’ under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
  • the interpretation of the right to be presumed innocent until proven guilty under s 25(1) of the Charter;
  • the operation of the requirement that all statutory provisions be interpreted in a manner compatible with human rights under s 32(1) of the Charter; and
  • when a right can be justifiably limited under s 7 of the Charter.
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Enforcing the Right to Vote: UK Government Given Deadline to Reinstate Prisoners’ Right to Vote

Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010)

The European Court of Human Rights recently considered the United Kingdom's continued failure to amend legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK.  The Court had considered the same issue five years earlier in Hirst v United Kingdom (No 2), but the UK Government had not taken steps to implement the judgment in that case.  In Greens and MT v United Kingdom, the Court applied its ‘pilot judgment’ procedure and gave the UK Government six months from the date the decision becomes final to amend its legislation and remove the blanket ban.

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Is a Presumption Against Bail Consistent with Human Rights? ACT Supreme Court Rules on Human Rights and the Interpretation of Legislation

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

The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent 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.

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