COMMONWEALTH PROGRAMME ACTIVITIES

At the request of trial lawyers representing the appellants, INTERIGHTS drafted an amicus brief outlining the jus cogens status of fundamental rights guaranteeing personal liberty and security and why they should defeat any claim of head of state immunity. Drawing on both the developments under international and domestic law, the brief sought to argue that the Pinochet decision should be extended to serving heads of state. The brief was accepted by the US Court of Appeals, and the case was heard on 5 March 2004. The panel recognised the strength of the appellant arguments, however all arguments were decided in favour of the Zanu PF party and on 6 October 2004, the Court dismissed the appeal. Appellant counsel plans to plan a petition for a rehearing followed by a cert petition to the Supreme Court should a rehearing not be granted.

Read INTERIGHTS' amicus brief here. 

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TRAINING: BUILDING CAPACITY

First International Human Rights Judicial Colloquium in Fiji Produces
Suva Principles on Judicial Independence and Access to Justice

The Suva Statement of Principles on Judicial Independence and Access to Justice is the final communiqu� agreed at the close of the first international human rights judicial colloquium held in the Fiji Islands. It reaffirms the commitment of the judiciary to take appropriate measures to uphold the rule of law and access to justice, whatever the prevailing political climate, including the humane treatment of all detainees, disregarding evidence obtained through torture and the relevance of applying international human rights law in decision-making.

Held in the capital Suva from 6 to 8 August 2004 and co-organised by INTERIGHTS and the Fiji Human Rights Commission and Fiji Judiciary, the �Access to Justice in a Changing World� event brought 13 Fijian judges together with 7 international jurists and experts from Canada, New Zealand, Australia, Papua New Guinea, Zambia and Geneva to hold a full and frank exchange of views on current challenges facing the judiciary in a politically uncertain world.

The main foci of the two-day sessions were judicial independence, protecting civil liberties and how to ensure access to justice for marginalised groups. Local developments such as the introduction of an anti-terrorism bill, the continuing marginalisation of different ethnic groups and the lack of any regional human rights mechanism highlighted the need for such an event. This was noted by the Fijian media during the two days, with the Colloquium receiving national network news coverage.

The Honourable Mr Jonetani Cokanasiga, Fiji�s Acting Minister for Justice opened the Colloquium, addressing an audience that included members of the Diplomatic Corps, the judiciary, the Chief Justice of Fiji, the Chair of the Fiji Human Rights Commission and members of the media. Over the next two days, international jurists presented papers on experiences within their national jurisdictions, framing them within the wider international context. Local judges followed with critical commentaries that examined those issues from the Fijian perspective. Healthy dialogue followed each of the sessions, and the main principles that came out of that discussion were distilled in the final communiqu�. 

The Colloquium follows a highly successful training programme for Fiji judges conducted by INTERIGHTS in 2003, in which staff ran sessions on comparative and international human rights law, enabling judges to assess some of their own decisions against new benchmarks. The recent Colloquium was part of a continuing wider INTERIGHTS initiative to develop its human rights work in an area of the Commonwealth that is frequently neglected.

Feedback from the participants was very positive, and will feed into planning for possible future events in Fiji in 2005.

The various papers and commentaries presented by the judges examining the themes of judicial independence, the protection of civil liberties and how to ensure access to justice for marginalised groups from both national and international perspectives, are published in an online report.

Read the Suva Statement of Principles here.

This event was kindly sponsored by NZAid, AusAid, the Commonwealth Foundation and the British Foreign & Commonwealth Office.

Local and international judges and staff of the Fiji Human Rights Commission and INTERIGHTS at the 'Access to Justice in a Changing World' Judicial Colloquium, held in Suva, Fiji, 6-8 August 2004

First Human Rights Training of High Court and Court of Appeal Judges in Fiji

INTERIGHTS participated in the first human rights training of High Court and Court of Appeal judges in Fiji. The training, which was also attended by the Chief Justice, was organised in conjunction with the Fijian Human Rights Commission on 9 August 2003 in Suva. Fiji has one of the most progressive Constitutions in the Commonwealth empowering judges to make explicit use of international human rights standards, even in the absence of ratification. However, without awareness of and access to the case law interpreting such standards, this positive framework can be largely meaningless.

Complementing the local expertise of the Commission on interpreting the Constitution, INTERIGHTS� Commonwealth and Equality Legal Officers ran sessions on comparative and international human rights law, enabling judges to assess some of their own recent decisions against new benchmarks. Subjects discussed included the right to life, freedom from torture and ill treatment, free expression, equality and non-discrimination. The enthusiastic participants expressed their hope that the event would become a regular occurrence. The initiative is part of a wider project to develop the work of INTERIGHTS in a region of the Commonwealth that is frequently neglected.

Further information about the work of the Commission can be found at http://www.humanrights.org.fj. 

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OTHER PROJECTS

Speakers included Andrew Anderson, Deputy Director of Front Line, the International Foundation for the Protection of Human Rights Defenders, Jane Winter, Director of British Irish Rights Watch and Irene Petras, Coordinator of Zimbabwe Lawyers for Human Rights. The meeting was chaired by INTERIGHTS� Commonwealth Law Officer and the President of the CLA, Colin Nicholls QC.

The audience heard that in some Commonwealth countries such as Zimbabwe, assaults on human rights defenders are a daily occurrence, and the rule of law is so systematically disregarded that it is almost impossible for them to carry out their work. In others, defenders face persecution for upholding the rights of workers (Malaysia), women (Nigeria) or torture victims (India, Malaysia and Sri Lanka).

�The situation has worsened in the aftermath of the 11 September attacks,� said Andrew Anderson. �Human rights defenders face greater challenges in their work of promoting and protecting the human rights of all. There is real danger that some governments may be using the global war on terrorism as a pretext to infringe on human rights and to clamp down on human rights defenders.�

Neither are the countries of the West that profess to uphold human rights blameless � Jane Winter highlighted the practice of high-level intimidation of human rights defenders in Northern Ireland.

Each of the organisations present offered practical solutions on how to help human rights defenders continue their work. This included giving grants to those defending human rights, making continuing appeals on their behalf to state institutions and governments and promoting stronger links between defenders through on- and offline publications.

A major focus of the discussion was the urgent need to train lawyers, judges and activists from around the Commonwealth in human rights issues, both by setting up mentoring schemes between senior and junior human rights lawyers, and through providing specially tailored training workshops supported by legal materials and resources.

Baroness Helena Kennedy QC, Chair of the British Council, gave the keynote speech in which she outlined her disappointment  at the �shift away from embedded liberalism� since post-Second World War restructuring� and the �general disdain for democratic processes� shown by some state governments. At the same time she expressed her strong conviction that �human rights norms, whatever your legal system, had to be the template by which it was tested�, and the crucial work of human rights defenders in making this a reality.

Click here to access the Commonwealth Lawyers' Association website.

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GENERAL about INTERIGHTS.org

Major Report on Right to Information in the Commonwealth

The Commonwealth Law Programme provided extensive comparative jurisprudence on the application of the right to information across the Commonwealth as part of a major report published by the Commonwealth Human Rights Initiative in New Delhi at the end of 2003. Entitled Open Sesame: Looking for the Right to Information in the Commonwealth, chapters include 'Right to Information: Touchstone for Democracy and Development', 'Balancing the Scales of Power: Legislating for Access', 'Making it Work: Entrenching Openness' and 'People Power: Civil Society Advocacy Experiences'.

Click here for more information.

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LATEST CASES FROM COMMON LAW JURISDICTIONS

Monthly round-ups of recent significant human rights decisions from common law jurisdictions.

February 2005
January 2005

December 2004
November 2004
October 2004
August/September 2004
July 2004
June 2004
May 2004
April 2004
March 2004
February 2004
January 2004

December 2003
November 2003
October 2003
September 2003
August 2003

AUSTRALIA

Kamleh v The Queen
[2005] HCA 2
High Court, 3 February 2005: FAIR HEARING; EVIDENCE

Evidence of out-of-court statements adduced to prove criminal intention was admissible.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2005/2.html

Nicholls v The Queen; Coates v The Queen
[2005] HCA 1
High Court, 3 February 2005: FAIR HEARING; EVIDENCE; BIAS

Admissibility of prior inconsistent statements allegedly made by witness off-video during police interview as exception to rule against admission of collateral statements.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2005/1.html

Applicants A104 of 2003 v Minister for Immigration and Multicultural & Indigenous Affairs
[2005] FCAFC 19
Federal Court, 25 February 2005: REFUGEES

No evidence to suggest that alleged persecuted social group �known friends of militants� existed in Punjab; doubtful whether such an entity could constitute a social group for purposes of the 1951 Convention.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/19.html

Minister for Immigration and Multicultural & Indigenous Affairs v Lorenzo
[2005] FCAFC 13
Federal Court, 22 February 2005: MIGRATION; CHILDREN

Best interests of child must be primary consideration when cancelling parent�s visa.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/13.html

Minister for Immigration and Multicultural & Indigenous Affairs v SVBB
[2005] FCAFC 12
Federal Court, 22 February 2005: REFUGEES

Family blood feud did not qualify as a legitimate ground for fear of persecution under 1951 Convention.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/12.html

CANADA

R v Decorte
[2005] SCC 9
Supreme Court, 25 February 2005: LIBERTY & SECURITY; INDIGENOUS PEOPLE

Indigenous constables enjoyed the same powers as police officers in carrying out specified duties, including conducting breath tests; jurisdiction not limited to reserve territories enabling lawful arrest and detention at a road block on the outskirts.

Full text at http://www.canlii.org/ca/cas/scc/2005/2005scc9.html

R v Krymowski
[2005] SCC 7
Supreme Court, 24 February 2005: FREE EXPRESSION; MINORITIES

Statutory offence of wilful promotion of hatred against Roma covered �gypsies�.

Full text at http://www.canlii.org/ca/cas/scc/2005/2005scc7.html 

Gorgiev v Minister of Human Resources Development
[2005] FCA 55
Federal Court of Appeal, 17 February 2005: FAIR HEARING; BIAS

Disclosure of rejected settlement offer by Disability Pensions Appeal Board did not result in a reasonable apprehension of bias against claimant.

Full text at http://www.canlii.org/ca/cas/fca/2005/2005fca55.html

Almrei v Minister of Citizenship and Immigration
[2005] FCA 54
Federal Court of Appeal, 8 February 2005: LIBERTY & SECURITY; CRUEL, INHUMAN OR DEGRADING TREATMENT

Consideration of detention of non-national under security legislation with reference to recent UK and US decisions.

Full text at http://www.canlii.org/ca/cas/fca/2005/2005fca54.html 

DOMINICA

Balson v The State
[2005] UKPC 2
Privy Council, 2 February 2005: DEATH PENALTY; CRUEL, INHUMAN OR DEGRADING TREATMENT

Mandatory death penalty for murder constituted inhuman or degrading punishment or treatment.

Full text at http://www.bailii.org/uk/cases/UKPC/2005/2.html

JAMAICA

Independent Jamaica Council for Human Rights (1998) Ltd & Ors v Marshall-Burnett & Anor (Jamaica)
[2005] UKPC 3
Privy Council, 3 February 2005: CONSTITUTIONALITY

Parliament altering right of appeal from Privy Council to Caribbean Court of Justice failed to adopt correct legislative procedures required for amending  special constitutional provisions.

Full text at http://www.bailii.org/uk/cases/UKPC/2005/3.html

SOUTH AFRICA

Volks NO v Robinson & Ors
CCT 12/04
Constitutional Court, 21 February 2005: EQUALITY; MARRIAGE; DIGNITY

Different treatment of permanent life partners compared to married spouses concerning maintenance after death was justified on grounds that marriage entails different rights and obligations.

Full text at http://www.constitutionalcourt.org.za/site/home.htm

Jaipal v The State
CCT 21/04
Constitutional Court, 18 February 2005: FAIR HEARING; BIAS

Presence of prosecutor, investigating officer, state witness and two presiding judicial assessors in the same office due to lack of space, whilst irregular, did not, in the particular circumstances of the case, result in an unfair trial although it had the potential to do so.

Full text at http://www.constitutionalcourt.org.za/site/home.htm

UNITED KINGDOM

Williamson & Ors, R (on the application of) v Secretary of State for Employment & Ors
[2005] UKHL 15
House of Lords, 24 February 2005: CHILDREN; CORPORAL PUNISHMENT; RELIGION; EDUCATION

Ban on corporal punishment did not violate religious rights of head teachers, teachers and parents of children at independent schools.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/15.html

Al-Hasan, R (on the application of) v Home Secretary
[2005] UKHL 13
House of Lords, 16 February 2005: FAIR HEARING; BIAS; PRISONERS

Adjudicator's prior involvement in and lack of dissent concerning the approval of a squat search of a prisoner could lead to reasonable apprehension of bias in relation to his subsequent determination of a challenge to the order.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/13.html

Greenfield, R (on the application of) v Home Secretary
[2005] UKHL 14
House of Lords, 16 February 2005: FAIR HEARING; PRISONERS; REMEDIES

Prisoner facing a criminal charge was wrongly denied legal representation by a Private Prison Deputy Controller who was not an independent and impartial tribunal for the purposes of Article 6 of the ECHR; consideration of damages for breach.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/14.html

Polanski v Conde Nast Publications Ltd
[2005] UKHL 10
House of Lords, 10 February 2005: FAIR HEARING, EVIDENCE; EXPRESSION

Plaintiff in libel action who was unable to travel to give oral evidence due to threat of extradition was entitled to give evidence via video link.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/10.html

Saggar, Re
[2005] EWCA Civ 174
Court of Appeal, 24 February 2005: FAIR HEARING, DELAY

Consideration of reasonable time in context of whether alleged delay by Customs in seeking to reopen a defendant's confiscation order, so as to increase the �amount which might be realised� under it, breached Article 6(1) of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/174.html

Nunn, R (on the application of) v First Secretary of State & Ors
[2005] EWCA Civ 101
Court of Appeal, 8 February 2005: FAIR HEARING

Incompetent operation of local planning scheme did not affect its legality for the purposes of Article 6 of the ECHR; application for judicial review of planning inspector�s decision to quash enforcement notices against mobile phone company for relocation of masts denied.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/101.html

Brunt & Ors v Southampton International Airport
[2005] EWCA Civ 93
Court of Appeal, 7 February 2005: EQUALITY; PROPERTY

Process for filtering out claims for compensation for aircraft noise did not constitute unfair discrimination; property rights did not entitle residents living near airports to compensation.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/93.html

Mlauzi v Home Secretary
[2005] EWCA Civ 128
Court of Appeal, 7 February 2005: REFUGEES; CRUEL, INHUMAN OR DEGRADING TREATMENT

Zimbabwean opposition supporter granted asylum on grounds that she was at risk of persecution throughout country beyond her own locality.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/128.html

Inland Revenue & Anor v Deutsche Morgen Grenfell Group plc
[2005] EWCA Civ 78
Court of Appeal, 4 February 2005: FAIR HEARING; PROPERTY

Restitution proceedings for taxes paid under regulations later declared invalid involved the determination of the applicant's civil rights within the meaning of Article 6(1) of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/78.html

Dow Jones Co Inc v Jameel
[2005] EWCA Civ 75
Court of Appeal, 3 February 2005: EXPRESSION; REMEDIES

Presumption of damage in libel law is not incompatible with the right to free expression.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/75.html

Jameel & Anor v Wall Street Journal Europe Sprl (No 2)
[2005] EWCA Civ 74
Court of Appeal, 3 February 2005: EXPRESSION

Presumption of falsity once defamation is proved does not breach right to free expression; consideration of test for satisfying Reynolds defence of qualified privilege.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/74.html

Momodou, R v
[2005] EWCA Crim 177
Court of Appeal, 2 February 2005: FAIR HEARING

Exercise of the trial judge's discretion to discharge an individual juror or the entire jury for impropriety, requires him to address the question whether impropriety has in fact occurred, and if it has, whether it can be cured, and if so how, or whether it is irremediable.

Full text at http://www.bailii.org/ew/cases/EWCA/Crim/2005/177.html

B v Home Secretary
[2005] EWCA Civ 61
Court of Appeal, 1 February 2005: REFUGEES; RAPE; CRUEL, INHUMAN OR DEGRADING TREATMENT; MENTAL HEALTH

Risk of psychiatric injury insufficient to give rise to a well founded fear of persecution under 1951 Convention; risk of rape will only give rise where state agent is implicated; severity of risk required to engage Article 3 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/61.html

UNITED STATES

Johnson v California
03-636
Supreme Court, 23 February 2005: PRISONERS; EQUALITY

Strict scrutiny based on consideration of individual cases required in justifying racial segregation of prisoners.

Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html

Smith v Massachusetts
03-8661
Supreme Court, 22 February 2005: FAIR HEARING, DOUBLE JEOPARDY

Reversing a not guilty finding mid-trial following an earlier withdrawl of the charge by the prosecution and resubmitting it to the jury breached the double jeopardy rule. 

Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html

January 2005

CANADA

R v Grandinetti
2005 SCC 5
Supreme Court, 27 January 2005: FAIR HEARING; EVIDENCE

Statements made by the accused to undercover police officers were inadmissible as not being made voluntarily to �persons in authority�.

Full text at http://www.canlii.org/ca/cas/scc/2005/2005scc5.html

HONG KONG

Ng Yat Chi v Max Share Ltd & Anor
[2005] HKCFA 7
Court of Final Appeal, 20 January 2005: ACCESS TO JUSTICE

Principles governing abuse of process by vexatious litigants.

Full text at http://www.hklii.org/hk/jud/en/hkcfa/2005/FACV000005_2004.html

JAMAICA

Shervin Emmanuel v The Commissioner of Correction
[2004] HCV 1055
Supreme Court, 19 October 2004: EXTRADITION; EVIDENCE

Extradition hearing complied with evidentiary and due process rules.

Full text at http://www.sc.gov.jm/Judgments/htmfiles/sc2004.htm

UNITED KINGDOM

D (a minor), R (on the application of) v Camberwell Green Youth Court
[2005] UKHL 4
House of Lords, 27 January 2005: FAIR HEARING; EVIDENCE; CHILDREN

New scheme governing evidence by child witnesses in criminal cases was compatible with Article 6 ECHR.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/4.html

Gregg v Scott
[2005] UKHL 2
House of Lords, 27 January 2005: HEALTH; REMEDIES

Availability of remedies in medical negligence cases.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/2.html

Smith (R) on the application of the Parole Board
[2005] UKHL 1
House of Lords, 27 January 2005: LIBERTY & SECURITY; PRISONERS; FAIR HEARING; EQUALITY OF ARMS

Prisoners had right to oral hearing when seeking to resist revocation of their parole licence.

Full text at http://www.bailii.org/uk/cases/UKHL/2005/1.html

Bangs v Connex South Eastern Ltd.
[2005] EWCA Civ 14
Court of Appeal, 27 January 2005:  FAIR HEARING; DELAY; APPEAL; WORK

Principles governing an appeal from an employment tribunal on grounds of unreasonable delay. Unreasonable delay, whilst it can be a breach of the right to a fair hearing, is a matter of fact and not law and as such does not constitute an independent ground of appeal.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/14.html

ID & Ors v Home Office
[2005] EWCA Civ 38
Court of Appeal, 27 January 2005: LIBERTY & SECURITY; ACCESS TO JUSTICE; REMEDIES; CRUEL, INHUMAN AND DEGRADING TREATMENT; LIFE; FAMILY LIFE; REFUGEES

Roma family had right to bring claim for false imprisonment and for breaches of Articles 2, 3, 5 and 8 ECHR following continuing detention by immigration authorities.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2005/38.html

 UNITED STATES

Clark v Martinez
03-878
Supreme Court, 12 January 2005: LIBERTY & SECURITY; DEPORTATION

Authorities could only detain non nationals due to be deported beyond the maximum 90 days period for only as long as it was reasonably necessary to achieve removal; same rules should be applied to all subjects regardless of their status.

Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html

AUSTRALIA

De Bruyn v Minister of Justice and Customs
[2004] FCAFC 334
Federal Court of Appeal, 22 December 2004: EXTRADITION; LIFE; HEALTH; CRUEL TREATMENT

Whether surrender of detainee to South African authorities would be unjust, oppressive or incompatible with humanitarian considerations due to risk of contracting HIV/AIDS in prison; whether prison conditions in the requesting country should be excluded from consideration.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/334.html

NALZ v Minister for Immigration
[2004] FCAFC 320
Federal Court of Appeal, 2 December 2004: REFUGEES

Whether asylum-seekers required or expected to modify behaviour or take reasonable steps to avoid persecution; whether there is a distinction between actual and imputed membership of a protected class of citizens under the Refugee Convention.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/320.html

BHP Billiton Ltd v Schultz
[2004] HCA 61
High Court, 7 December 2004: ACCESS TO JUSTICE; HEALTH

Whether claim for compensation following exposure to asbestos should be transferred to forum of state where alleged wrongdoing occurred in interests of justice.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/61.html

BARBADOS

Griffiths & Ors v The Queen
[2004] UKPC 58
Privy Council, 16 December 2004: DUE PROCESS; DEATH PENALTY

Constitutionality of common law felony murder rule; consideration of imposition of mandatory death penalty.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/58.html

CANADA

Martineau v MMR
2004 SCC 81
Supreme Court, 16 December 2004: SELF-INCRIMINATION

Whether motion for discovery by customs violated defendant�s right to protection against self-incrimination.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc81.html

Reference re Same-Sex Marriage
2004 SCC 79
Supreme Court, 9 December 2004: EQUALITY; SEXUALITY; RELIGION

Proposed federal legislation extending right to civil marriage to same-sex couples was consistent with guarantees of equality rights and freedom of religion.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc79.html

NEW ZEALAND

Zaoui v Attorney General & Ors
SC CIV 13/2004
Supreme Court, 9 December 2004: LIBERTY & SECURITY; REFUGEES

Refugee detained under security legislation granted bail.

Full text at http://www.justice.govt.nz/judgments/

SOUTH AFRICA

DPP, Cape of Good Hope v Robinson
CCT 15/04
Constitutional Court, 2 December 2004: EXTRADITION; FAIR HEARING

Responsibility of minister and not extraditing magistrate to take into account the fact that detainee if extradited would serve a sentence imposed in his absence thereby breaching his fair trial rights.

Full text at http://www.concourt.gov.za/summary.php?case_id=12841

UNITED KINGDOM

A & Ors v Secretary of State for the Home Department
[2004] UKHL 56
House of Lords, 16 December 2004: LIBERTY & SECURITY; EQUALITY

Indefinite detention of non nationals without charge or trial under anti-terror legislation was disproportionate and discriminatory contrary to Articles 5 and 14 of the ECHR; quashing of order derogating from Article 5.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/56.html

European Roma Rights Centre & Ors, R (on the application of) v Immigration Officer at Prague Airport & Anor
[2004] UKHL 55
House of Lords, 9 December 2004: EQUALITY; REFUGEES

Procedure empowering British immigration officers to grant or refuse leave to enter the UK to passengers at Prague airport prior to departure systematically discriminated against Roma; no breach of Refugee Convention.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/55.html

Malcolm v Mackenzie & Ors
[2004] EWCA Civ 1748
Court of Appeal, 21 December 2004: EQUALITY; PROPERTY

Whether differential treatment in relation to pension rights following bankruptcy between self-employed and employed persons amounted to unlawful discrimination.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1748.html

Nail & Ors v News Group Newspapers Ltd
[2004] EWCA Civ 1708
Court of Appeal, 20 December 2004: EXPRESSION; REMEDIES

Discussion on quantum of damages following successful defamation action; extent to which the making of the offer of amends should go in mitigation of the amount of compensation.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1708.html

Gezer v Secretary of State for the Home Department
[2004] EWCA Civ 1730
Court of Appeal, 17 December 2004: CRUEL AND INHUMAN TREATMENT; ASYLUM

Consideration of the extent to which an asylum dispersal system could result in breaches of Article 3 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1730.html

M, R (on the application of) v Immigration Appeal Tribunal & Anor
[2004] EWCA Civ 1731
Court of Appeal, 16 December 2004: ACCESS TO JUSTICE; EQUALITY; ASYLUM

Discretionary denial of judicial review of immigration tribunal decisions to those seeking asylum did not constitute unjustified discrimination.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1731.html

Clays Lane Housing Cooperative Ltd, R (on the application of) v Housing Corporation
[2004] EWCA Civ 1658
Court of Appeal, 8 December 2004: PROPERTY; ASSOCIATION

Compulsory transfer of housing stock from a housing cooperative to another body following mismanagement did not amount to unlawful interference with either its right to property or freedom of association.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1658.html

Laporte, R (on the application of) v Glos Constabulary & Ors
[2004] EWCA Civ 1639
Court of Appeal, 8 December 2004: EXPRESSION; ASSEMBLY

Consideration of police powers in relation to demonstrations.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1639.html

Z v Secretary of State for the Home Department
[2004] EWCA Civ 1578
Court of Appeal, 2 December 2004: REFUGEES; SEXUALITY; CRUEL & INHUMAN TREATMENT; PRIVATE LIFE

Consideration of asylum claim of Zimbabwean claiming persecution on grounds of his sexuality.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1578.html

Al Skeini & Ors, R (on the application of) v Secretary of State for Defence
[2004] EWHC 2911 (Admin)
High Court, 14 December 2004: LIFE; JURISDICTION

Failure to adequately investigate death of Iraqi in British military custody breached UK�s obligations under the ECHR; British run prisons in foreign territory subject to ECHR jurisdiction.

Full text at http://www.bailii.org/ew/cases/EWHC/Admin/2004/2911.html

UNITED STATES

Devenpeck et al v Alford
03-710
Supreme Court, 13 December 2004: LIBERTY & SECURITY

Warrantless arrest can be justified where police officer, based on the facts known to him, had probable cause to believe that a crime had been or was being committed.

Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html

Florida v Nixon
03-931
Supreme Court, 13 December 2004: DEATH PENALTY; FAIR HEARING; LEGAL REPRESENTATION

Lawyer�s failure to obtain the defendant�s express consent to a strategy of conceding guilty in a capital murder case did not automatically render the representation ineffective in order to warrant a new trial.

AUSTRALIA

SZAOG v Minister for Immigration and Multicultural Affairs
[2004] FCAFC 316
Federal Court, 26 November 2004: REFUGEES; CONSCIENCE

Conscientious objection to military service must have a political or religious basis for claimant to come within scope of Refugee Convention.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/316.html

CANADA

Auton (Guardian ad litem of) v British Columbia (Attorney General)
[2004] SCC 78
Supreme Court, 19 November 2004: EQUALITY; DISABILITY; MENTAL HEALTH; CHILDREN

Failure to fund therapy treatment for autistic children did not amount to  discrimination nor breach their right to life, liberty and security.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc78.html

Ha�da Nation v British Columbia (Minister of Forests); Taku River Tlingit First Nation v British Columbia (Project Assessment Director)
[2004] SCC 73; [2004] SCC 74
Supreme Court, 18 November 2004: INDIGENOUS PEOPLE; PARTICIPATION; LAND RIGHTS

State under a duty to consult and accommodate indigenous people prior to making decisions that might adversely effect their as yet unproven rights and title claims. Whilst this duty does not extend to and cannot be delegated to third parties, such as private business, this does not amount to an abrogation of the latter�s potential liability to indigenous people.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc73.html  and http://www.canlii.org/ca/cas/scc/2004/2004scc74.html

NEW ZEALAND

Ahmed Zaoui v The Attorney General & Ors
SC CIV 13/2004
Supreme Court, 25 November 2004: LIBERTY & SECURITY; REFUGEES

Refugee detained under security legislation entitled under the common law to be granted bail in accordance with Refugee Convention pending determination of security certificate.

Full text at http://www.justice.govt.nz/judgments/

Hemmes v Young
CA 33/04
Court of Appeal, 26 November 2004: CHILDREN; ADOPTION; RIGHT TO INFORMATION; EQUALITY

Whilst adopted children do not yet possess a universally recognised right to know their biological parents (although the trend is in this direction) they should not be prevented from bringing proceedings against a third party to establish that they are their parents; legislative scheme regulating paternity declarations should not discriminate against adopted children.

Full text at  http://www.justice.govt.nz/judgments/

SOUTH AFRICA

Rail Commuters Action Group & Ors v Transnet Ltd t/a Metrorail
CCT 56/03
Constitutional Court, 26 November 2004: LIFE; LIBERTY & SECURITY

State under a positive duty to take reasonable steps to provide for the security of rail commuters.

Full text at http://www.concourt.gov.za/summary.php?case_id=12840

UNITED KINGDOM

Three Rivers District Council & Ors v Bank of England
[2004] UKHL 48
House of Lords, 11 November 2004: DISCLOSURE

Legal advice privilege should be given a wide scope to include not only legal rights and obligations but also 'presentational' assistance in putting relevant factual material before a judicial inquiry in an orderly and attractive fashion; in cases of doubt an objective test should be applied as to whether the advice relates to the "rights, liabilities, obligations or remedies of the client either under private law or under public law".

Full text at http://www.bailii.org/uk/cases/UKHL/2004/48.html

Al Fayed & Ors v Metropolitan Police Commissioner
[2004] EWCA Civ 1579
Court of Appeal, 25 November 2004: LIBERTY & SECURITY

Claim for wrongful arrest and false imprisonment dismissed following compliance of police with both Wednesbury reasonableness and ECHR principles for arresting and detention of suspects for questioning.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1579.html

Nilsen v HM Prison Full Sutton & Anor
[2004] EWCA Civ 1540
Court of Appeal, 17 November 2004: PRISONERS; EXPRESSION

Preventing serial killer serving life imprisonment from publishing his autobiography was justified as being necessary in a democratic society in accordance with Article 10(2) of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1540.html

The Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department
[2004] EWCA Civ 1481
Court of Appeal, 12 November 2004: REFUGEES; FAIR HEARING

Fast track system of asylum adjudication at detention centre was not inherently unfair provided it operated a flexible timetabling of decision-making.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1481.html

Kent Pharmaceuticals Ltd, R (on the application of) v Serious Fraud Office & Ors
[2004] EWCA Civ 1494
Court of Appeal, 11 November 2004: DISCLOSURE

Disclosure by Serious Fraud Office to Department of Health of certain documents seized from pharmaceutical company was in compliance with the law as required by Article 8(2) of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1494.html

Greene v Associated Newspapers Ltd
[2004] EWCA Civ 1462
Court of Appeal, 5 November 2004: EXPRESSION; PRIVACY

Principles governing prior restraint in defamation cases; freedom of the press to report in public interest outweighed claimant�s reputation rights under Article 8 of the ECHR where no direct matters of privacy or confidentiality are raised.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1462.html

 L (China) v Secretary of State for the Home Department
[2004] EWCA Civ 1441
Court of Appeal, 3 November 2004: REFUGEES; RELIGION

Tribunal erred in dismissing refugee application by Falun Gung member when it failed to appreciate that she would continue her activities upon return to China; insufficient evidence to demonstrate that Falun Gung amounts to a religion for the purposes of the Refugee Convention.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1441.html

Bennett v A & Anor, Officers & Ors
[2004] EWCA Civ 1439
Court of Appeal, 2 November 2004: LIFE; LIBERTY & SECURITY; ACCESS TO JUSTICE

Police officers entitled to anonymity when giving evidence to inquest where they had genuine fears for their safety which outweighed interests of victim�s family.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1439.html

UNITED STATES

Smith v Texas
543 US (2004)
Supreme Court, 15 November 2004: DEATH PENALTY

In directing the jury to give effect to mitigation evidence in determining sentence, a judge should not at the same time state that it is only on condition that they give negative instead of positive responses to whether the act was deliberate and whether the accused would be a danger to society in the future.

Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html

October 2004

Last updated 1 November 2004.

AUSTRALIA

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/274.html

STCB v Minister for Immigration and Multicultural Affairs
[2004] FCFCA 266
Federal Court of Appeal (Full Court), 6 October 2004 : REFUGEES

Claim that persecution arose because of membership of a particular social group comprised of citizens who were subject to the same customary law code failed in absence of a common element that made the group a cognisable one within Albanian society.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/266.html

JAMAICA

Bernard v Attorney General
[2004] UKPC 47
Privy Council, 7 October 2004: REMEDIES; LIFE

State was vicariously liable for unlawful shooting by police constable where officers were routinely permitted to take loaded guns home and carry them while off duty.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/47.html

MAURITIUS

Dosoruth v Mauritius
[2004] UKPC 51
Privy Council, 21 October 2004: FAIR HEARING; APPEAL

Appellate court justified in not admitting new evidence on appeal against conviction in absence of request from appellant for retrial due to serious irregularity.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/51.html

NEW ZEALAND

The Queen v Siang Lim
CA 173/04
Court of Appeal, 8 October 2004: FAIR HEARING; DELAY; DISCLOSURE

16 month delay between charge and trial due to lack of disclosure was not unreasonable where the Crown did not have possession of the documents and could not compel disclosure from an un-cooperative third party.

Full text at

http://www.brookers.co.nz/legal/judgments/Default.asp?doc=ca2004\case~nz~nat~ca~2004~11493.htm#Number1

The Queen v Thomas Wiremu Morgan
CA 261/04
Court of Appeal, 18 October 2004: FAIR HEARING; DOUBLE JEOPARDY

Principle of double jeopardy infringed by subjecting the accused to two separate counts of (1) intent to cause grievous bodily harm and wounding and (2) assault and in so doing using a knife as a weapon where the subject of count (1) constituted concurrently the factual basis for count (2) and the latter was simply a less serious form of the former.

Full text at

http://www.brookers.co.nz/legal/judgments/Default.asp?doc=ca2004\case~nz~nat~ca~2004~11628.htm#Number1

SOUTH AFRICA

Bhe v Magistrate, Khayelitsha  & Ors
Case CCT 49/03
Constitutional Court, 15 October 2004: EQUALITY; DIGNITY; PROPERTY

Customary law of succession favouring males breached constitutional rights to equality and dignity.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12718

Zondi v Member of the Executive Council for Traditional and Local Government Affairs
Case CCT 73/03
Constitutional Court, 15 October 2004: EQUALITY; ACCESS TO JUSTICE; PROPERTY

Scheme which empowered landowners to seize and impound livestock found trespassing on their land and for them to be sold without a court order lacked due process and unfairly discriminated against landless black people.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12724

Jaftha v Schoeman & Ors
Case CCT 74/03
Constitutional Court, 8 October 2004: HOUSING

Process of execution against immovable property for debtors was unconstitutional where it permitted a person�s home to be sold thereby disqualifying them from state-subsidised housing and placing them at risk of homelessness.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12912

Mkontwana v Nelson Mandela Metropolitan Municipality
Case CCT 57/03
Constitutional Court, 6 October 2004: PROPERTY; HOUSING; EQUALITY

Preclusion of transfer of all immovable property until outstanding water and electricity charges had been paid did not constitute arbitrary deprivation nor infringement of the rights to equality or access to housing.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12721

Mabaso v Law Society of the Northern Provinces
Case CCT 76/03
Constitutional Court, 5 October 2004: EQUALITY; WORK

Shortcut route for enrolment for attorneys admitted under legislation applying in the former Republic of South Africa unfairly discriminated against those admitted in the former �homelands�.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12796

Port Elizabeth Municipal Authority v Various Occupiers
Case CCT 53/03
Constitutional Court, 1 October 2004: HOUSING

Unjust and inequitable to grant eviction orders against 68 people living in shacks on privately owned land in the absence of taking all reasonable steps prior to making the order to secure suitable alternative accommodation.

Full text at http://www.concourt.gov.za/judgment.php?case_id=12900

UK

S (a child), Re
[2004] UKHL 47
House of Lords, 28 October 2004: PRIVACY; FREE EXPRESSION

Application for injunction restraining the publication by newspapers of the identity of a defendant in a murder trial denied where it had been intended to protect the privacy of her son who was not involved in the criminal proceedings.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/47.html

Sheldrake v Director of Public Prosecutions
[2004] UKHL 43
House of Lords, 28 October 2004: PRESUMPTION OF INNOCENCE

Reversing the burden of proof on a defendant in a road traffic accident held not incompatible with the presumption of innocence guaranteed by Article 6 of the ECHR.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/43.html

Attorney General�s Reference No 5 of 2002
[2004] UKHL 40
House of Lords, 14 October 2004: PRIVACY

A court may properly enquire whether intercepted material relied on by the prosecution was obtained by tapping a private as opposed to a public telecommunications system. If the court concludes that it was public, that is the end of the enquiry. If the court concludes that it was private but unlawful, that also will be the end of the enquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence.

Full text at  http://www.bailii.org/uk/cases/UKHL/2004/40.html

Cream Holdings Ltd & Ors v Bannerjee & Ors
[2004] UKHL 44
House of Lords, 14 October 2004: FREE EXPRESSION

In public interest to permit publication of certain confidential documents alleging corruption in business prior to trial given that the latter's prospects of success at trial were not sufficiently likely to justify making an interim restraint order.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/44.html

Jones v Ministry of Interior Kingdom of Saudi Arabia
[2004] EWCA 1394
Court of Appeal, 28 October 2004: TORTURE; REMEDIES; JURISDICTION

Foreign state agents not immune from civil proceedings brought in UK in respect of alleged acts of torture committed by them against British nationals; state immunity confirmed; issue of jurisdiction left open.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1394.html

Szuluk, R (on the application of) v HMP Full Sutton & Anor
[2004] EWCA Civ 1426
Court of Appeal, 29 October 2004: PRIVACY; PRISONERS

Limited interference with high security prisoner�s correspondence justified on security grounds.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1426.html

Coates & Ors v South Bucks DC
[2004] EWCA Civ 1378
Court of Appeal, 22 October 2004: HOUSING; FAMILY LIFE

Reasonable in the interests of maintaining the planning regime to enforce eviction notice against travellers living on a sensitive greenbelt site and in breach of several previous court orders.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1378.html

B & Ors, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs
[2004] EWCA Civ 1344
Court of Appeal, 18 October 2004: REFUGEES; CRUEL AND INHUMAN TREATMENT; JURISDICTION

Diplomatic or consular officials were under a duty to grant 'diplomatic asylum' to fugitives where they were at risk of cruel and inhuman treatment.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1344.html

First Secretary of State & Ors v Chichester District Council
[2004] EWCA Civ 1248
Court of Appeal, 29 September 2004: HOUSING; FAMILY LIFE

Planning Inspector did not breach travellers� Article 8 ECHR rights by refusing planning permission and issuing enforcement proceedings against them.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1248.html 

G, R (on the application of) v Mental Health Review Tribunal
[2004] EWHC 2193
High Court, 7 October 2004: LIBERTY & SECURITY; MENTAL HEALTH

Condition of residence at a private sector psychiatric hospital prior to conditional discharge amounted to a deprivation of liberty within the meaning of Article 5 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWHC/Admin/2004/2193.html

Khan v Royal Air Force Summary Appeal Court
[2004] EWHC 2230
High Court, 7 October 2004: RELIGION; CONSCIENCE

Muslim who went AWOL from the air force prior to the Iraq war could not claim a right to conscientious objection on the grounds of his religion.

Full text at http://www.bailii.org/ew/cases/EWHC/Admin/2004/2230.html

Morris, R (on the application of) v Westminster City Council & Anor
[2004] EWHC 2191
High Court, 7 October 2004: FAMILY LIFE; EQUALITY

Council�s refusal to provide accommodation as a matter of priority to homeless mother and child on ground of child�s immigration status amounted to infringement of claimant�s right to respect for family life without discrimination under Articles 8 and 14 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWHC/Admin/2004/2191.html

Portsmouth NHS Trust v Wyatt & Ors
[2004] EWHC 2247 (Fam)
High Court, 7 October 2004: LIFE; CHILDREN

In terminally ill baby�s best interests to permit medical staff to determine whether her life support should be terminated to end her suffering.

Full text at http://www.bailii.org/ew/cases/EWHC/Fam/2004/2247.html

August/September 2004

Last updated 1 October 2004.

AUSTRALIA

Whether detention of illegal non-citizen pending removal is lawful under statute where there is no real prospect of removal in reasonably foreseeable future; whether provision for indefinite detention infringes constitution.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html

Behrooz v Secretary of the Department for Immigration and Multicultural and Indigenous Affairs
[2004] HCA 36
High Court, 6 August 2004: LIBERTY AND SECURITY; CRUEL, INHUMAN AND DEGRADING TREATMENT

Whether detention under harsh and inhumane conditions at detention centre was authorised by statute.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/36.html

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji
[2004] HCA 38
High Court, 6 August 2004: LIBERTY AND SECURITY; EQUALITY; NATIONALITY; SEPARATION OF POWERS

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/38.html

Singh v Commonwealth of Australia
[2004] HCA 43
High Court, 9 September 2004: NATIONALITY; MOVEMENT; EQUALITY

Whether non-citizenship permitted removal of non-alien.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/43.html 

INDIA

Durgo Bai v State of Punjab
Appeal (Crim) 1143-1144 of 2003
Supreme Court, 10 August 2004: SEARCH & SEIZURE

Legality of search and seizure of drugs.

Full text at http://demotemp119.nic.in/supremecourt/qrydisp.asp?tfnm=26281

Zutshi & Anor v Debnath & Anor
Appeal (Crim) 30 of 1999
Supreme Court, 10 August 2004: SEARCH & SEIZURE

Legality of search and seizure of premises by customs.

Full text at http://demotemp119.nic.in/supremecourt/qrydisp.asp?tfnm=26303

NEW ZEALAND

Television New Zealand v Attorney General
CA 169/04
Court of Appeal, 17 September 2004: FREE EXPRESSION

Refusal of authorities to allow TV station to interview illegal immigrant detained for security of reasons breached latter�s right to free speech.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=ca2004\case~nz~nat~ca~2004~11450.htm#Number1

Zaoui v Attorney General & Anor
CA 166/04
Court of Appeal, 17 September 2004: LIBERTY & SECURITY; REFUGEES

Refugee lawfully detained on security grounds.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=ca2004\case~nz~nat~ca~2004~11449.htm#Number1

SOUTH AFRICA

Mashavha v President of the Republic & Ors
Case CCT 67/03
Constitutional Court, 6 September 2004: SOCIAL SECURITY; EQUALITY

Social assistance scheme should be applied uniformly across the country in order to protect against discrimination.

Full text at http://www.concourt.gov.za/files/6703/mashavha.pdf

Kaunda & Ors v President of the Republic & Ors
Case CCT 23/04
Constitutional Court, 4 August 2004: DEATH PENALTY; LIBERTY AND SECURITY; CRUEL, INHUMAN AND DEGRADING TREATMENT; FAIR HEARING; EXTRADITION

Extent of state�s constitutional obligation to protect citizens on trial abroad at risk of ill treatment whilst in detention, receiving an unfair hearing and being subjected to the death penalty.

Full text at http://www.concourt.gov.za/files/kaunda.pdf

UNITED KINGDOM

Uttley, R (on the application of) v Secretary of State for the Home Department
[2004] UKHL 38
House of Lords, 30 July 2004: RETROACTIVITY

No breach of Art 7(1) of the ECHR where there was no change in the relevant penalties during the 12 years between commission of the offences and trial and sentencing, but merely the arrangements for the prisoner�s early release on licence.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/38.html

 Rutherford & Anor v Secretary of State for Trade and Industry
[2004] EWCA Civ 1186
Court of Appeal, 3 September 2004: EQUALITY; WORK

Age limit on claiming rights to unfair dismissal and redundancy did not amount to indirect sex discrimination.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1186.html

Goldsmith, R (on the application of) v London Borough of Wandsworth
[2004] EWCA Civ 1170
Court of Appeal, 27 August 2004: PRIVATE LIFE; LIFE; HEALTH

Failure of local authority to address patient�s right to private life when deciding to transfer her to a nursing home; failure of decision-making process to act in the best interests of patient and her human rights.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1170.html

A & Ors v Secretary of the State for the Home Department
[2004] EWCA Civ 1123
Court of Appeal, 11 August 2004: LIBERTY AND SECURITY; TORTURE

Permissible on national security grounds to justify detention based on evidence obtained under torture abroad.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html

N (Kenya) v Secretary of State for the Home Department
[2004] EWCA Civ 1094
Court of Appeal, 5 August 2004: PRIVATE AND FAMILY LIFE; REFUGEE; DEPORTATION

Commission of serious crimes by refugee justified his deportation despite disruption to his family life.

July 2004

BARBADOS

Full text at http://www.bailii.org/uk/cases/UKPC/2004/32.html

JAMAICA

Watson v R
[2004] UKPC 34
Privy Council, 7 July 2004: DEATH PENALTY; CRUEL AND INHUMAN TREATMENT

Mandatory death penalty confirmed as an inhuman punishment which could not be saved as an �existing law�.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/34.html

NEW ZEALAND

R v Keefe & Rymer
CA 162/04; 187/04
Court of Appeal, 22 July 2004: LIBERTY & SECURITY

Challenge to bail decision.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2004\ca162.htm#Number1

R v Condon
CA 373/03
Court of Appeal, 21 July 2004: LEGAL REPRESENTATION

Failure of judge to adjourn proceedings following withdrawal of counsel did not result in miscarriage of justice.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2003\ca373.htm#Number1

Huata v Prebble & Anor
CA 34/04
Court of Appeal, 16 July 2004: POLITICAL PARTICIPATION; SEPARATION OF POWERS

Claim for judicial review of decision by parliamentary party leader to declare MP�s seat vacant following conviction for fraud.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2004\ca034a.htm#Number1

Jennings v Buchanan
[2004] UKPC 36
Privy Council, 14 July 2004: EXPRESSION; POLITICAL PARTICIPATION

Whether an MP may be held liable for defamation after reaffirming the privileged statement outside Parliament.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/36.html

SOUTH AFRICA

Minister of Finance & Anor v Van Heerden
Case CCT 63/03
Constitutional Court, 29 July 2004: EQUALITY; WORK

Whether differentiated employers contribution to political office bearers� pension fund constituted unfair discrimination or were justified in interests of affirmative action.

Full text at http://www.concourt.gov.za/cases.php

ST KITTS AND NEVIS

Attorney General v Rodionov
[2004] UKPC 38
Privy Council, 20 July 2004: LIBERTY & SECURITY; JURISDICTION

Privy Council had no jurisdiction to hear appeal against refusal of habeas corpus pending extradition.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/38.html

TRINIDAD & TOBAGO

Matthew v The State
[2004] UKPC 33
Privy Council, 7 July 2004: DEATH PENALTY

Majority decision that mandatory death penalty was not unconstitutional on grounds that it was saved as an �existing law� prior to the enactment of the Constitution.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/33.html

UNITED KINGDOM

LS, R (on application of) v Chief Constable of South Yorkshire Police
[2004] UKHL 39
House of Lords, 22 July 2004: EVIDENCE; PRIVACY; EQUALITY

Retention of fingerprints and DNA evidence did not breach Arts 8 and 14 of the ECHR.

Full text at  http://www.bailii.org/uk/cases/UKHL/2004/39.html

US Government v Barnette & Anor
[2004] UKHL 37
House of Lords, 22 July 2004: JURISDICTION; FAIR HEARING

UK courts were not under a duty not to enforce a confiscation order granted in the US courts and instead allow it to be challenged by way of appeal since the circumstances did not fall within the exception to non extra-territorial applicability of the ECHR laid down in Soering v UK (1989).

Full text at http://www.bailii.org/uk/cases/UKHL/2004/37.html

South Bucks District Council & Anor v Porter
[2004] UKHL 33
House of Lords, 1 July 2004: HOUSING

Housing needs of traveller justified granting of retrospective planning permission for unlawful development.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/33.html

June 2004

AUSTRALIA

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/28.html 

CANADA

Application under s. 83.28 of the Criminal Code (Re)
[2004] SCC 42
Supreme Court, 23 June 2004: LIBERTY & SECURITY; FAIR HEARING; JUDICIAL INDEPENDENCE

Whether provision allowing for gathering of information and investigative hearings to combat terrorism unduly infringed suspect�s right to silence and judicial independence and impartiality.

Full text at  http://www.canlii.org/ca/cas/scc/2004/2004scc42.html

Vancouver Sun v Attorney General & Ors
[2004] SCC 43
Supreme Court, 23 June 2004: FAIR HEARING; EXPRESSION

Whether hearing for determining constitutional validity of investigative hearing provision and validity of order for investigative hearing in terrorism case should be conducted in camera or in open court.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc43.html

British-Columbia v. Canadian Forest Products Ltd.
[2004] SCC 38
Supreme Court, 11 June 2004: ENVIRONMENT; REMEDIES

Appropriate basis for calculating compensation for damage to environmentally sensitive area.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc38.html

Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General)
[2004] SCC 39
Supreme Court, 11 June 2004: WORK ; EQUALITY ; JURISDICTION

Human Rights Tribunal had jurisdiction over labour dispute concerning discrimination in collective agreement where human rights issue raised.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc39.html

HONG KONG

Secretary for Security v Prabakar
[2004] HKFCA 39
Court of Final Appeal, 8 June 2004: ASYLUM; TORTURE

Minister under a duty to adhere to a policy of not deporting a person to a country where claim that he would be subjected to torture in that country was considered to be well-founded.

Full text at http://www.hklii.org/hk/eng_jud/HKCFA/2004/20040608_FACV000016_2003.html

JAMAICA

Grounds for special leave to appeal in proceedings seeking habeas corpus against an extradition order.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/27.html

NEW ZEALAND

R v Dawson
CA430/03
Court of Appeal, 17 June 2004: FAIR HEARING

Impact of non-disclosure by prosecution on fairness of trial.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2003\ca430.htm#Number1

Manuel v The Superintendent, Hawkes Bay Regional Prison
CA67/04
Court of Appeal, 15 June 2004: LIBERTY & SECURITY

Legality of recall of prisoner on parole.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2004\ca067.htm#Number1 

TRINIDAD & TOBAGO

Independent Publishing Company Ltd v Attorney General & Anor
[2004] UKPC 26
Privy Council, 8 June 2004: EXPRESSION; FAIR HEARING; REMEDIES

Constitutionality of non-publication orders issued against the media concerning ongoing high-profile criminal trial; scope of constitutional redress for violation of rights to free expression and due process.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/26.html

UNITED KINGDOM

Evans v Amicus Healthcare Ltd
[2004] EWCA Civ 727
Court of Appeal, 25 June 2004: FAMILY; CHILDREN

Whether refusal of IVF treatment and destruction of frozen embryos following withdrawal of consent by former partner breached applicant�s rights under Articles 8 and 12 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/727.html

Ghaidan v Godin-Mendoza
[2004] UKHL 30
House of Lords, 21 June 2004: HOUSING; EQUALITY

Right of surviving spouse or partner to become a statutory tenant by succession on the death of a protected tenant of a dwelling-house extended to same-sex relationships. Includes useful appendix to Lord Steyn�s judgment on declarations of incompatibility to date under the Human Rights Act.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/30.html

Razgar, R (on the Application of) v Home Secretary
[2004] UKHL 27
House of Lords, 17 June 2004: ASYLUM; FAMILY AND PRIVATE LIFE; TORTURE

Claim under Article 8 of the ECHR sufficient to prevent deportation of asylum seeker to Germany even where Article 3 is not engaged.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/27.html

Ullah, R (on the Application of) v Special Adjudicator
[2004] UKHL 26
House of Lords, 17 June 2004: ASYLUM; RELIGION; TORTURE

Ditto a claim under Article 9 and other Articles could be pursued.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/26.html

UNITED STATES

Ashcroft v ACLU
SC 03-218
Supreme Court, 29 June 2004: EXPRESSION; CHILDREN

Law introducing online registration designed to protect children from pornography unduly infringed adult�s rights.

Full text at http://www.supremecourtus.gov/opinions/03slipopinion.html

Sosa v Alvarez-Machain
SC 03-339
Supreme Court, 29 June 2004: ACCESS TO JUSTICE; TORTURE; JURISDICTION

Victims can use the Alien Tort Claims Act to sue in US courts for human rights abuses, particularly torture, committed overseas.

Full text at http://www.supremecourtus.gov/opinions/03slipopinion.html

Hamdi v Rumsfeld
SC 03-6696
Supreme Court, 28 June 2004: ACCESS TO JUSTICE; LIBERTY & SECURITY

Detainees held in Guantanamo Bay could challenge their detention through US courts; detainee denied due process because of lack of opportunity to be heard.

Full text at http://www.supremecourtus.gov/opinions/03slipopinion.html

Rasul v Bush
SC 03-334
Supreme Court, 28 June 2004: ACCESS TO JUSTICE; LIBERTY & SECURITY; JURISDICTION

Detainees held in Guantanamo Bay could challenge their detention through US courts; detention of both US and non nationals as �enemy combatants� without charge or trial is lawful.

Full text at http://www.supremecourtus.gov/opinions/03slipopinion.html

May 2004

AUSTRALIA

Applicant S v Minister for Immigration and Multicultural Affairs
[2004] HCA 25
High Court, 27 May 2004: REFUGEES

Whether �able young-bodied men from Afghanistan� qualified as a social group for purposes of the Refugee Convention; whether implementation of a law of general application and/or ad hoc policy can amount to persecution.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/25.html

CANADA

Harper v Attorney General
[2004] SCC 33
Supreme Court, 18 May 2004: EXPRESSION; POLITICAL PARTICIPATION

Whether third-party election advertising scheme and blackout on third party advertising on polling day infringed freedom of expression and, if so, whether the infringement was justifiable.

Full text at  http://www.canlii.org/ca/cas/scc/2004/2004scc33.html

Pritchard v Ontario Human Rights Commission
[2004] SCC 31
Supreme Court, 14 May 2004: FAIR HEARING

Whether legal opinions prepared by in-house counsel for an administrative board was protected by solicitor-client privilege.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc31.html

JAMAICA

Jamaica Bar Association v Ernest Smith & Company
HCV207/03
Supreme Court, 30 October 2003: SEARCH & SEIZURE

Legality of police search and seizure conducted at behest of foreign state.

Full text at http://www.sc.gov.jm

PAKISTAN

Mian Muhammad Shahbaz Sharif v Ministry of Interior,
Government of Pakistan, Islamabad & Five Others
CPLA NO.791/2004 & CMA NO. 3469/2003
Supreme Court, 7 April 2004: POLITICAL PARTICIPATION; MOVEMENT

Constitutionality of denying political party leader in exile from returning to country and participating in politics.

Full text at http://www.scp.com.pk/sub_links/judgements/CONSTITUTION%20PETITION%20NO.%2055%20of%202003.htm

PITCAIRN ISLANDS

The Queen v Seven Named Accused
Trials No. 1-55/2003
Supreme Court, 19 April 2004: FAIR HEARING

Independence of local magistrates in context of case determining applicability of British human rights law and jurisdiction in dependent territory.

Full text at http://www.paclii.org

SOUTH AFRICA

President of the Republic of South Africa & Ors v Modderklip Boerdery (Pty) LTD
SCA 213/03
Supreme Court of Appeal, 27 May 2004: HOUSING

State breached its constitutional obligations to squatters by failing to realise their rights of access to adequate housing and land.

For further details see http://www.communitylawcentre.org.za

UNITED KINGDOM

Secretary of State for the Home Department v Limbuela & Ors
[2004] EWCA Civ 540
Court of Appeal, 21 May 2004: ASYLUM; LIFE; INHUMAN TREATMENT; HOUSING

State has a duty under Article 3 of the ECHR to prevent homeless asylum-seekers from suffering destitution.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/540.html

X v Y
[2004] EWCA Civ 662
Court of Appeal, 28 May 2004: WORK; FAIR HEARING; PRIVATE LIFE

Claim by youth worker that dismissal for non-work related sexual offence breached right to private life.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/662.html

VANUATU

Vohor v Abiut
[2004] VUSC 5
Supreme Court, 13 May 2004: POLITICAL PARTICIPATION

Constitutionality of Speaker�s ability to dissolve Parliament.

April 2004

AUSTRALIA

Minister for Immigration and Multicultural Affairs v Respondents S152/2003
[2004] HCA 18
High Court, 21 April 2004 : REFUGEES; RELIGION

Nature of state�s obligation to protect its citizens from attacks by non-state agents in context of alleged incidents against Jehovah�s witnesses in Ukraine; what constitutes a pervasive pattern of harm for purposes of Refugees Convention.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/18.html

Whether welfare jurisdiction extends to children of marriages of parents in immigration detention; interpretation of legislation in conformity with treaty obligations.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/20.html

CANADA

R v Fontaine
[2004] SCC 27
Supreme Court, 22 April 2004: FAIR HEARING 

Trial judge erred in withholding defence of mental disorder automatism from jury; nature of evidential burden.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc27.html

TRINIDAD & TOBAGO

Boodhoo & Anor v Attorney General
[2004] UKPC 17
Privy Council, 1 April 2004: FAIR HEARING

Whether excessive delay in giving judgment violated the appellants� rights to a fair hearing in a property dispute.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/17.html

UNITED KINGDOM

Campbell v MGN Ltd
[2004] UKHL 22
House of Lords, 6 May 2004: PRIVACY; EXPRESSION

Unlawful invasion of privacy following publication of photos and details about celebrity�s drug treatment; discussion as to the extent to which an action for breach of confidence can be grounded in the right to privacy under Art 8 of the European Convention on Human Rights.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/22.html

A v West Yorkshire Police
[2004] UKHL 21
House of Lords, 6 May 2004: EQUALITY

Transsexual�s application to become a police officer should not have been rejected.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/21.html

Mullen, R (on the application of) v Secretary of State for the Home Department
[2004] UKHL 18
House of Lords, 29 April 2004: REMEDIES; FAIR HEARING; EXTRADITION

Principles governing payment of compensation following unlawful extradition.

AUSTRALIA

Truong v The Queen
[2004] HCA 10
High Court, 4 March 2004: FAIR HEARING; EXTRADITION; JURISDICTION

Accused could be tried for offences for which he was not specifically extradited provided there was sufficient proof to convict him of both.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/10.html

Putland v The Queen
[2004] HCA 8
High Court, 12 February 2004: LIBERTY & SECURITY; SENTENCING; DISCRIMINATION

Territory legislation permitting aggregate sentencing did not result in constitutionally impermissible discrimination between federal offenders.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/8.html

SGDB v Minister for Immigration
[2004] FCAFC 59
Federal Court (Full Court), 15 March 2004: FAIR HEARING; REFUGEES

Failure of tribunal to consider whether there was a well-founded fear of persecution on journey back to place of resettlement.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/59.html

Attorney General v Hartwell
[2004] UKPC 12
Privy Council, 23 February 2004: REMEDIES

Scope of vicarious liability for police misconduct.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/12.html

CANADA

R v Smith
[2004] SCC 14
Supreme Court, 4 March 2004: FAIR HEARING; APPEAL; JURISDICTION

Not in the interests of justice to hear an appeal on behalf of the appellant who had died seven years previously.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc14.html

INDIA

State of Punjab & Ors v Kaur
Appeal (civil) 1382 of 1999
Supreme Court, 18 March 2004: EQUALITY; WORK

Test for applying equal pay doctrine in case concerning differential pay scales within the teaching profession.

Full text at http://www.judis.nic.in/sc 

Mehta v Union of India & Ors
Writ Petition (civil) 4677 of 1985
Supreme Court, 18 March 2004: ENVIRONMENT

Issuing of detailed directions to deal with impact of mining activity on local environment.

Full text at http://www.judis.nic.in/sc 

The Commissioner of Police & Ors v Avadhuta & Anor
Appeal (civil) 6230 of 1990
Supreme Court, 11 March 2004: RELIGION; ASSEMBLY

Restrictions on performing religious dance in public processions breached Article 25 of the Constitution.

Full text at http://www.judis.nic.in/sc 

SOUTH AFRICA

Daniels v Campbell NO & Ors
CCT 40/03
Constitutional Court, 11 March 2004: DISCRIMINATION; RELIGION; FAMILY; PROPERTY

Unlawful to exclude partners to Muslim marriages from protection under inheritance laws.

Full text at http://www.concourt.gov.za

State v Basson
CCT 30/03
Constitutional Court, 10 March 2004: JURISDICTION; INDEPENDENCE OF THE JUDICIARY

What constitutes �constitutional issues� for leave to appeal from the Supreme Court of Appeal against an acquittal in a criminal case following refusal of an application for recusal, where such an appeal would not raise a question of law and would deal only with findings of fact.

Full text at http://www.concourt.gov.za

Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor
CCT 18/03
Constitutional Court, 9 March 2004: LIBERTY & SECURITY; ASYLUM SEEKERS

Detention of illegal immigrants prior to deportation deemed to be excessively long and lacking in sufficient safeguards.

Full text at http://www.concourt.gov.za

Khosa & Ors v Minister of Social Development & Ors
CCT 12/03
Constitutional Court, 4 March 2004: LIFE; DISCRIMINATION; SOCIAL SECURITY

Unlawful to deny social assistance to destitute non-citizens who are permanent residents.

Full text at http://www.concourt.gov.za

UNITED KINGDOM

Flynn & Ors v. Her Majesty's Advocate (High Court of Justiciary)
[2004] UKPC D1
Privy Council (Scotland), 18 March 2004: LIBERTY & SECURITY; SENTENCING

Revised sentencing regime for those convicted of murder held to be compatible with European Convention on Human Rights (EHCR) after removal of undue executive discretion.

Full text at  http://www.privy-council.org.uk/files/other/flynn.rtf

Re McKerr
[2004] UKHL 12
House of Lords, 11 March 2004: LIFE

No obligation to conduct further investigation into fatal shooting occurring 20 years previously since no continuing breach of Article 2 of the ECHR; non- retrospectivity of Human Rights Act confirmed.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/12.html

Regime for conducting investigations into deaths in custody did not in all cases meet the obligations under Article 2 of the ECHR; requirement that inquest verdicts clearly express jury�s conclusions on cause of death.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/10.html

R v Her Majesty�s Coroner for the County of Yorkshire ex parte Sacker
[2004] UKHL 11
House of Lords, 11 March 2004: LIFE; PRISONERS

New inquest ordered after original failed to address the positive obligation under Article 2 of the ECHR to safeguard life following prisoner�s suicide.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/11.html

R v Police Complaints Authority ex parte Green
[2004] UKHL 6
House of Lords, 26 February 2004: LIFE; CRUEL, INHUMAN & DEGRADING TREATMENT

Conduct of investigation into serious injuries resulting from alleged police misconduct did not breach either Article 2 or 3 of the ECHR.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/6.html

Unlawfully excluding pupil from school could violate his right to education under Article 2 of the First Protocol to the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/382.html

R v Dundon
[2004] EWCA Crim 621
Court of Appeal (England & Wales), 18 March 2004: FAIR HEARING; INDEPENDENCE OF THE JUDICIARY

Conviction quashed on grounds that naval court martial by a Judge Advocate was insufficiently independent and impartial.

Full text at http://www.bailii.org/ew/cases/EWCA/Crim/2004/621.html

Restricted legal aid scheme for making a criminal injuries compensation claim was compatible with the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/234.html

February 2004

Last updated 24 February 2004.

AUSTRALIA

Bashford v Information Australia (Newsletters) Pty Limited
[2004] HCA 5
High Court, 11 February 2004: FREE EXPRESSION

Absence of availability of defence of fair and accurate report of judicial proceedings in a defamation action does not preclude the availability of defence of qualified privilege. 

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2004/5.html

BAHAMAS

Cartwright & Anor v Superintendent of HM Prison & Anor
[2004] UKPC 10
Privy Council, 10 February 2004: HABEAS CORPUS; EXTRADITION; APPEAL

Right of appeal lay from decision to deny extradition and grant habeas corpus even in absence of legislative provision.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/10.html

 
BELIZE

Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment & Anor
[2004] UKPC 6
Privy Council, 29 January 2004: ENVIRONMENT; FAIR HEARING

Decision to build environment-threatening dam not unlawful; no obligation to hold public hearing on the project.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/6.html

CANADA

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
[2004] SCC 4
Supreme Court, 30 January 2004: CRUEL, INHUMAN TREATMENT; CHILDREN

Use of reasonable force by parents and teachers in the form of corporal punishment does not constitute cruel and inhuman treatment.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc4.html

R v Lyttle
[2004] SCC 5
Supreme Court, 12 February 2004: FAIR HEARING; EQUALITY OF ARMS

Undue restriction on right of accused to conduct proper cross-examination of principal prosecution witness.

Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc5.html

GRENADA

Worme & Anor v Commissioner of Police
[2004] UKPC 8
Privy Council, 29 January 2004: FREE EXPRESSION

Crime of intentional libel did not violate the right to free expression following publication of article critical of Prime Minister. Free expression protects the freedom to publish material discussing political matters and the conduct of public figures in relation to parliamentary elections provided the material is true and for the public benefit.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/8.html

MAURITIUS

Bishop of Roman Catholic Diocese of Port Louis & Ors v Tengur & Ors
[2004] UKPC 9
Privy Council, 3 February 2004: EDUCATION; EQUALITY; RELIGION

Admissions policy for schools favouring certain religion violated constitutional equality provisions.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/9.html 

TRINIDAD & TOBAGO

Harracksingh v Attorney General of Trinidad and Tobago
[2004] UKPC 3
Privy Council, 15 January 2004: APPEAL; EVIDENCE; LIBERTY & SECURITY; REMEDIES

Appeal court erred in reversing trial judge�s conclusions on reliability of witness testimony in civil action against police for false imprisonment and assault. Attorney General vicariously liable for torts.

Full text at http://www.bailii.org/uk/cases/UKPC/2004/3.html

UNITED KINGDOM

Al �Ameri v Royal Borough of Kensington and Chelsea
[2004] UKHL 4
House of Lords, 5 February 2004: HOUSING; LIFE; ASYLUM

Asylum seeker facing destitution should not be forced to accept accommodation outside an area of his choosing.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/4.html

R v H
[2004] UKHL 3
House of Lords, 5 February 2004: FAIR HEARING; EVIDENCE

Claims for public interest immunity made on behalf of the prosecution will not violate Article 6 of the ECHR provided they are conducted with scrupulous attention to appropriate governing principles and continuing regard to the proper interests of the defendant.

Full text at http://www.bailii.org/uk/cases/UKHL/2004/3.html 

JANUARY 2004

AUSTRALIA

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs
[2003] HCA 71
High Court, 9 December 2003: REFUGEES, SEXUALITY

Whether a need for homosexuals in Bangladesh to act discreetly to avoid serious harm constituted persecution.

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2003/71.html

CANADA

R v Malmo-Levine; R v Caine
[2003] SCC 74

R v Clay
[2003] SCC 75
Supreme Court, 23 December 2003: LIBERTY

Prohibition on marijuana did not infringe liberty rights under s 7 of the Charter.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc75.html and

http://www.canlii.org/ca/cas/scc/2003/2003scc74.html

Beals v Saldanha
[2003] SCC 72
Supreme Court, 18 December 2003: REMEDIES

Section 7 of the Charter protecting principles of fundamental justice did not shield defendant from enforcement of foreign judgment.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc72.html

R v Taillefer; R v Duguay
[2003] SCC 70
Supreme Court, 12 December 2003: FAIR TRIAL

Failure of prosecution to disclose all relevant evidence to defence infringed right of accused to make full answer and defence.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc70.html

TRINIDAD & TOBAGO

Skeete v The State
[2003] UKPC 82
Privy Council, 24 November 2003: FAIR TRIAL

Impact of conduct of counsel and judge on fairness of trial for attempted murder.

Full text at http://www.bailii.org/uk/cases/UKPC/2003/82.html

UNITED KINGDOM

Attorney General's Reference No 2 of 2001
[2003] UKHL 68
House of Lords, 11 December 2003: FAIR TRIAL

Whether criminal proceedings may be stayed on the grounds that the �reasonable time� provision of Art 6 ECHR has been violated even though there is no demonstrable prejudice to the accused; when does �reasonable time� period commence?

Full text at http://www.bailii.org/uk/cases/UKHL/2003/68.html

Marcic v Thames Water Utilities Ltd
[2003] UKHL 66
House of Lords, 4 December 2003: HOME, ENVIRONMENT

Whether a statutory scheme for dealing with periodic sewer flooding satisfied the right to privacy and protection of the home under Art 8(1) of the ECHR.

Full text at http://www.bailii.org/uk/cases/UKHL/2003/66.html

AUSTRALIA

Purvis v New South Wales (Dept of Education and Training)
[2003] HCA 62
High Court, 11 November 2003: EQUALITY, DISABILITY, EDUCATION

Whether suspension and exclusion of brain damaged pupil for violent behaviour constituted discrimination on grounds of disability

Full text at http://www.austlii.edu.au/au/cases/cth/HCA/2003/62.html

CANADA

Doucet-Boudreau v Nova Scotia (Minister of Education)
[2003] SCC 62
Supreme Court, 6 November 2003: EDUCATION, LANGUAGE, MINORITIES, REMEDIES

Trial judge retained his jurisdiction to ensure enforcement of order requiring province to provide minority language facilities in secondary schools since any remedy must guarantee full and meaningful protection of Charter rights.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc62.html

Maranda v Richer
[2003] SCC 67
Supreme Court, 14 November 2003: SEARCH & SEIZURE

Extensive search of lawyer�s office to uncover evidence on client breached s 8 of Charter given that the information could have been obtained from other sources and the lawyer was not notified. Presumption that information about lawyer�s billing fees falls within lawyer-client privilege.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc67.html

Commission des de la personne et des droits de la jeunesse v Maksteel Quebec
[2003] SCC 68
Supreme Court, 14 November 2003: EQUALITY, WORK, PRISONERS

No protection under s 18(2) of the Charter from dismissal due to incarceration.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc68.html

TRINIDAD & TOBAGO

Balkissoon Roodal v The State
PC Appeal 18/2003
Privy Council, 20 November 2003: DEATH PENALTY, CRUEL, INHUMAN AND DEGRADING TREATMENT

Mandatory death penalty declared unconstitutional. Ruling will probably lead to reconsideration of sentences of 84 death row inmates in Trinidad and perhaps 200 more in the Bahamas, Barbados and Jamaica when similar challenges are heard.

Full text at  http://www.privy-council.org.uk/files/other/balkissoon%20roodal.rtf

UNITED KINGDOM

Von Brandenburg, R (on the application of) v East London and the City Mental Health NHS Trust & Anor
[2003] UKHL 58

IH, R (on the application of) v Secretary of State for the Home Department & Anor
[2003] UKHL 59
House of Lords, 13 November 2003: MENTAL HEALTH, LIBERTY & SECURITY

Two cases dealing with the principles to be exercised in determining whether (a) a discharged mental health patient can be readmitted in the absence of any evidence demonstrating a change of circumstances and (b) a conditionally discharged patient can continue to be detained.

Full text at http://www.bailii.org/uk/cases/UKHL/2003/58.html and  http://www.bailii.org/uk/cases/UKHL/2003/59.html

UNITED STATES

Goodridge & Ors v Department of Public Health & Anor
[FN2] SJC-08860
Massachusetts Supreme Court, 18 November 2003: EQUALITY, SEXUALITY

Denying civil marriage and accompanying benefits to same-sex couples ruled unconstitutional.

Full text at http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 231
Federal Court, 24 October 2003: ASYLUM

Failure of tribunal to adequately consider that Taliban still posed a threat to applicant in Afghanistan.

Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/231.html

Martin v Nova Scotia Workers Compensation Board
[2003] SCC 54
Supreme Court, 3 October 2003: EQUALITY, WORK

Workers compensation legislation infringing equality provisions of Charter by excluding certain injuries and benefits from scheme.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc54.html

Union of India v Nanickan & Anor
Appeal (crl.) 21 of 2002
Supreme Court, 13 October 2003: LIBERTY & SECURITY, DELAY

Right to make representation against order of preventive detention breached by inordinate delay.

Full text at http://www.judis.nic.in/sc/qrydisp.asp?tfnm=19383

Alexkor Ltd v Richtersveld Community & Ors 
CCT 19/03
Constitutional Court, 14 October 2003: INDIGENOUS PEOPLE, LAND, ENVIRONMENT

Recognition of indigenous people�s claim to land and natural resources following illegal dispossession.

Full text at http://www.concourt.gov.za/files/alexkor/alexkor.pdf

Regina v Secretary of State for the Home Department ex parte Amin
[2003] UKHL 51

Failure to adequately protect prisoner from fellow inmate and to adequately investigate his death.

Full text at http://www.bailii.org/uk/cases/UKHL/2003/51.html

Wainwright & Anor v Home Office
[2003] UKHL 53
House of Lords, 16 October 2003: PRIVACY, PRISONERS, DEGRADING TREATMENT

Lawfulness of strip searching of prisoner. Discussion as to whether English common law recognised a tort of invasion of privacy in light of incorporation of Article 8(1) of the ECHR. 

OCTOBER 2003

Nature of protection afforded to publication of court proceedings as a defence to a defamation action. Consideration of whether a court officer in making available reasons for a judgment publishes a protected report of the court�s proceedings and whether a newspaper article is a later publication of a fair extract, abstract or summary of a protected report.

Full text at http://www.austlii.edu.au/au/cases/cth/high_ct/2003/52.html

Wewaykum Indian Band v Canada
[2003-09-26] SCC
Supreme Court, 26 September 2003: FAIR HEARING

Criteria for establishing reasonable apprehension of judicial bias. Allegation that judge�s involvement as federal Associate Deputy Minister of Justice in the early stages of an indigenous people�s land claim in the mid 1980s gave rise to a reasonable apprehension of bias.

Full text at http://www.canlii.org/ca/cas/scc/2003/09.html

R v Powley
[2003-09-19] SCC
Supreme Court, 19 September 2003: INDIGENOUS PEOPLES 

Criteria for supporting a site-specific indigenous peoples� claim, i.e. to hunt for food in a certain area. Rejection of the approach that such rights must find their origin in the pre-contact practices of indigenous ancestors, thereby denying current status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc43.html

Bike World Limited v The Comptroller of Customs & Anor
Appeal No. 46 of 2002
Privy Council, 6 October 2003: PROPERTY

Unreasonable seizure of imported goods by customs violated constitutional property rights.

Full text at http://www.privy-council.org.uk/files/other/bike.rtf

R v Young
CA13/03
Court of Appeal, 15 September 2003: FAIR HEARING

Failure to receive testimony of foreign-based defence witness, either through provision of video link or by admitting his written evidence, after refusal to fund his return flight resulted in miscarriage of justice.

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2003\ca013.htm#Number1

Watts, R (on the application of) v Bedford Primary Care Trust & Ors 
[2003] EWHC 2228 (Admin)
High Court, 01 October 2003: HEALTH

Extent of state�s positive obligation to provide healthcare in the context of Articles 3 and 8 of the European Convention on Human Rights. Claim for reimbursement of healthcare costs following treatment abroad.

Full text at http://www.bailii.org/ew/cases/EWHC/Admin/2003/2228.html                  

SEPTEMBER 2003

CANADA 

R v Asante-Mensa
(2003-07-11) SCC
Supreme Court, 11 July 2003: LIBERTY & SECURITY

Citizen could use reasonable force in making a lawful arrest under Ontario�s Trespass to Property Act. Concept of �arrest� defined.

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc38.html 

Trociuk v British Columbia
(2003-06-06) SCC
Supreme Court, 6 June 2003: EQUALITY 

Denying an estranged father�s request to have his details recorded on his child�s birth certificate and therefore choose the latter�s surname constituted unlawful sex discrimination. 

Full text at http://www.canlii.org/ca/cas/scc/2003/2003scc34.html 

HONG KONG 

Yeung Ka Yee v HKSAR
FAMC No. 16 of 2003
Court of Final Appeal, 30 May 2003: LIBERTY & SECURITY; ILL TREATMENT

Two-hour delay in conveying suspect to police station acceptable since not all breaches of custody guidelines amounted to oppression.

Full text at http://www.hklii.org/hk/eng_jud/HKCFA/2003/20030530_FAMC000016_2003.html

INDIA 

State of Haryana & Anor v Tilak Raj & Ors
Appeal (Civil) 4570/2003
Supreme Court, 14 July 2003: EQUALITY; WORK

Equal pay for equal work should only be applied to comparable jobs and not, for example, between daily-rated workers and regular employees. However, former should be paid at least minimum wage. 

Full text at http://www.judis.nic.in/sc/qrydisp.asp

JAMAICA 

The Gleaner Company & Anor v Abrahams
PC 86/ 2001

Privy Council, 14 July 2003: FREE EXPRESSION

Award of over �500,000 damages in libel case not deemed to be excessive.

NEW ZEALAND

R v Greer
CA197/01
Court of Appeal, 4 June 2003: FAIR HEARING

Denying computer facilities to prisoners could have a detrimental impact on their ability to prepare a full defence. 

Full text at http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2001/ca197.htm#Number1  

UNITED KINGDOM 

London Borough of Harrow v Qazi
[2003] UKHL 43
House of Lords, 31 July 2003: HOUSING

Held 3:2 that the right to respect for home did not prevail against a local authority order for lawful possession against a tenant. Extensive discussion of ECHR jurisprudence on housing rights.

Full text at http://www.bailii.org/uk/cases/UKHL/2003/43.html 

AUSTRALIA

Dranichnikov v Minister for Immigration and Multicultural Affairs; Re Minister for Immigration
[2003] HCA 26
High Court, 8 May 2003

�Particular social group� category must be precisely defined when assessing refugee claim

Refugee Tribunal erred by treating Russian asylum seeker as a member of a wide social group of entrepreneurs and/or businessmen. Instead should have classified him as coming from a more limited group consisting of entrepreneurs and/or businessmen who had publicly criticised law enforcement authorities for failing to take action against crime or criminals, thereby placing themselves at risk of persecution.

 Full text at http://www.austlii.edu.au/au/cases/cth/high_ct/2003/26.html

CANADA

Halpern v Canada (Attorney general)
(2003-06-10) ONCA C39172;C39174
Ontario Court of Appeal, 10 June 2003

Unlawful discrimination to deny same-sex couples the right to marry.

Case brought by seven gay and lesbian couples that wished to participate in a civil marriage ceremony.

Full text at http://www.canlii.org/on/cas/onca/2003/2003onca10314.html

UK

Razgar, R (on the application of) v Secretary of State for the Home Department
[2003] EWCA Civ 840 (19 June 2003)
Court of Appeal, 19 June 2003

The Secretary of State cannot lawfully issue a certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 that human rights claims by asylum seekers are �manifestly unfounded� unless the claim is bound to fail before an adjudicator. Insufficient that he considers that the claim is likely to fail on appeal, or even that it is very likely to fail.

Challenge by an Iraqi asylum seeker of the decision to remove then to another EU state on the grounds that would unnecessarily interfere with his family life contrary to Art 8 of the ECHR.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2003/840.html

USA

Grutter v Bollinger (02-241)
Supreme Court, 23 June 2003

Affirmative action upheld in university admissions policy.

White Michigan resident unsuccessfully challenged University of Michigan�s admissions policy designed to achieve ethnic diversity.

Full text at http://supct.law.cornell.edu/supct/html/02-241.ZS.html

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