Digest 7.3 Combined for WEB

Digest

Summer2012

Vol.7 No.3

Commonwealth Human Rights Law Digest

7 CHRLD 225-355

CommonwealthHuman Rights Law

ISSN 1363-7169

StaffAndrea Coomber Legal DirectorVesselina VandovaLitigation DirectorJoanne SawyerLitigation Director (maternity leave)Amana Dawuda-WoduHead of Human Resources and GovernanceSarah HarringtonHead of Fundraising and CommunicationsIryna PeleshkoHead of FinanceJudy A OderLawyer, AfricaSolomon SaccoLawyer, AfricaSusie TalbotLawyer, Economic and Social RightsPádraig HughesLawyer, EqualitySibongile NdasheLawyer, EqualityConstantin CojocariuLawyer, EuropeYuri MarchenkoLawyer, EuropeDina VedernikovaLawyer, Security and the Rule of Law and South CaucasusArpine AvetisyanLegal Adviser, South Caucasus (Cover)Moni ShresthaLegal Team Co-ordinator, Africa / South Asia / Equality / Security and the Rule of LawHelen DuffySenior Consultant/Special CounselRebecca CummingInformation and Publications Officer

Rachel FleetwoodInformation and Publications Officer (maternity leave)Vicky LloydFundraising OfficerChloe MarongLegal Team AdministratorMichelle WoodbineOffice and Human Resources Administrator

PresidentLord Lester of Herne Hill qc

Board of DirectorsJeremy McBride (chair)Rachel ArrundalePriscilla Ashun-SarpyTim Eicke qcJoanna GrantDr Neville LintonAlexandra MarksIshbel MathesonProfessor Rachel MurrayDonncha O’ConnellEmma PlayfairDr Lynn Welchman

International Advisory CouncilProfessor Philip AlstonFlorence ButegwaRoger ErreraProfessor Yash P GhaiAsma KhaderViviana KrsticevicMarek Antoni NowickiSonia PicadoProfessor Gerard QuinnProfessor Martin ScheininSuriya Wickremasinghe

There are three issues and one index per volume of the Commonwealth Human Rights Law Digest.The subscription rate is £45 per volume

and back issues are available at £15 per issue. Payment can be made by Sterling cheque or bank transfer (payable to interights) and sent to:

Subscriptions interights Lancaster House 33 Islington High Street London n1 9lhuk

EditorRebecca CummingConsultant editor Jeremy McBride

Editorial board Treva Braun | commonwealth secretariat

Andrea Coomber | interights

Martin Lau | soas

Derek O’Brien | oxford brookes university

Digest

Summer 2012


Vol.7 No.3

Using the Digest

The Digest is arranged by subject matter. The entries under each subject heading are arranged alphabetically according to the sub-headings relating to that issue. A single decision may have a number of sub-headings appearing under the same or different subject headings. The full summary of a decision will appear under the sub-heading referring to the main issue addressed in that case. Note that one sub-heading may be followed by several cases where the same point has been raised in each.

Full details, including the relevant court, names of judges, names of counsel (where available) and date of judgment are given for each decision summarised. At the end of the summary the court reference is given for unreported decisions and citations are supplied for decisions which have been reported. There is also a hyperlink to allow readers to access the full text of the judgment online.

Within each summary, citations are provided for judgments applied, followed, considered or distinguished, where relevant. We hope that such citations will help the reader to identify the important human rights-related decisions, whether at domestic or regional/international level, referred to in each case. References to decisions summarised in this or a previous issue of the Digest also give the relevant Digest citation.

interights welcomes readers’ comments on both the format and the style of the Digest summaries. Please note that the summaries along with hyperlinks to the full-text decisions of all Digest cases are provided on interights’ Commonwealth human rights law database, located on our website at www.interights.org.

Acknowledgements interights would like to express its gratitude to all those who have made copies of relevant judgments available for summarising in the Digest. Such persons are too numerous to mention, but the publication would not exist without their invaluable assistance.

interights would like to thank the pro bono coordinators at the College of Law centres across the country, the BPP Human Rights Unit and the pro bono team and lawyers at Allen & Overy.

In particular we would like to thank: Joanna Grant and Camilla Macpherson from Allen & Overy; Douglas Carleton and Victoria Fitzpatrick from Dechert; and Jasmina Akhtar, Zoe Allen-Robinson, Joseph Barker, Rachel Bennett, Natalie Bourke, Jonathon Bridge, Alon Chenzbraun, Laura Clarke, Caitlin Conyers, Alice Darling, Caralyn Davies, Andrew Debley, Charlotte Drury, Rebecca Dymond, Gareth Edwards, Sian Edwards, Rachel Etheridge, Hannah Etim-Gorst, James Fairman, Jenny Fraser, Jennifer Frost, Catherine Gibbons, Kate Hatton, Stewart Henderson, Collette Hogg, Hester Ikin, John Inglese, Benjamin Jones, Nandeep Judge, Bijal Ladva, Christopher Ledwich, Emma Lough, Kirstin Macdougall, Ambereen Mahmood, Brian Mansfield, Rory McHugh, Rachel Millington, Bhavika Mistry, Alice Morrissey, Thomas Muggridge, Gloria Osei, Leigh Simms, Charlotte Sivanathan, Erika Stagg, Adam Webb and Thomas Willmott from the College of Law and BPP Law Schools.

This issue of the Digest has been developed with the generous support of the Commonwealth Secretariat.

ContentsUsing the Digest ii

Acknowledgements ii

Table of cases

By Name iv

By Jurisdiction vi

Editorial review viii

Summaries of judicial decisions

Accountability & impunity 225

Children 231

Cruel, inhuman or degrading treatment 238

Dignity 242

Disability 242

Education 249

Equality 249

Expression 262

Fair hearing 273

Family life 291

Housing 300

Indigenous people 303

International and regional procedures 303

International standards 305

Liberty & security 306

Life 314

Marriage 315

Movement 316

Nationality 316

Political participation 319

Private life 328

Refugees 332

Religion 338

Remedies 338

Reputation 345

Separation of powers 346

Social security 346

Torture 347

Women 347

Work 352

Table of casesBy nameAhmed & Ors v Federation of PakistanSupreme Court, Pakistan 346

Albutt v Centre for the Study of Violence and Reconciliation & OrsConstitutional Court, South Africa 228

Alexander v Minister of Justice & OrsSupreme Court, Namibia 306

Al Rawi & Ors v The Security Service & OrsHigh Court of Justice, United Kingdom 275

Association for Social Justice & Research v Union of India & Ors High Court (Delhi), India 231

Atkinson & Ors v Ministry of HealthHuman Rights Review Tribunal, New Zealand 242

Aziz-ud-Din & Ors v Federation of PakistanSupreme Court, Pakistan 258

B v KCourt of Appeal, New Zealand 234

Birmingham City Council v ClueCourt of Appeal, United Kingdom 297

Boni & Ors v Tolukuma Gold Mines Ltd & OrsSupreme Court of Justice, Papua New Guinea 273

Canada (Prime Minister) v KhadrSupreme Court, Canada 309

Excell v New Zealand PoliceHigh Court (Palmerston North Registry), New Zealand 312

Gramara (Private) Limited & Anor v Government of the Republic of Zimbabwe & OrsHigh Court (Harare), Zimbabwe 303

Grant & Anor v Torstar Corp & OrsSupreme Court, Canada 262

Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & OrsSupreme Court, United Kingdom 270

Habib v Commonwealth of AustraliaFederal Court, Australia 225

Helmut Oberlander v The Attorney General of CanadaFederal Court of Appeal, Canada 316

Hughes & Anor v Elections CanadaCanadian Human Rights Tribunal, Canada 244

In Re B (A Child)Supreme Court, United Kingdom 236

Johnson and Balwant v The Attorney General of Trinidad and TobagoJudicial Committee of the Privy Council, Trinidad & Tobago 256

Kylie v Commission for Conciliation Mediation and Arbitration & OrsLabour Appeal Court, South Africa 352

Marshall & Ors v Deputy Governor of Bermuda & OrsJudicial Committee of the Privy Council, Bermuda 253

McInnes v Her Majesty’s Advocate (Scotland)Supreme Court, United Kingdom 283

McKean v The Attorney-General for and on behalf of The Department for Corrections & AnorCourt of Appeal, New Zealand 341

Mifumi (U) Ltd & Ors v Attorney General & AnorConstitutional Court, Uganda 348

MRR v GRHigh Court, Australia 232

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v

Mugoya Kyawa Gaster v Attorney GeneralConstitutional Court, Uganda 274

Nokotyana & Ors v Ekurhuleni Metropolitan Municipality & OrsConstitutional Court, South Africa 300

Norris v Government of United States of AmericaSupreme Court, United Kingdom 291

Numeri v RepublicHigh Court, Malawi 308

Oatile v Attorney GeneralHigh Court (Lobatse), Botswana 339

Officer Commanding Correctional Services – Mokhotlong & Anor v SelepeCourt of Appeal, Lesotho 328

Parasnath Tiwari & Anor v Central Reserve Police Force & AnorSupreme Court, India 314

Prime Minister of Belize & Anor v Vellos & OrsJudicial Committee of the Privy Council, Belize 319

R (on the application of Barclay & Ors) v Secretary of State for Justice & OrsSupreme Court, United Kingdom 322

R (on the application of E) v Governing Body of JFS & OrsSupreme Court, United Kingdom 249

R (on the application of F) & Anor v Secretary of State for the Home DepartmentSupreme Court, United Kingdom 329

R (on the application of JS (Sri Lanka)) v Secretary of State for the Home DepartmentSupreme Court, United Kingdom 332

R v Basi & OrsSupreme Court, Canada 281

R v Horncastle & OrsSupreme Court, United Kingdom 277

R v NasogaluakSupreme Court, Canada 343

R v National PostSupreme Court, Canada 266

Regina v MalasaHigh Court, Solomon Islands 296

Selvi & Ors v State of Karnataka & AnorSupreme Court, India 285

Shabana Bano v Imran KhanSupreme Court, India 347

Smith v Canada (Minister of Citizenship and Immigration)Federal Court, Canada 335

Surender Paswan & Ors v State of Bihar & OrsSupreme Court, India 257

Syed Bashir-ud-din Qadri v Nazir Ahmed Shah & OrsSupreme Court, India 246

Weheire v Attorney-GeneralHigh Court (Nairobi), Kenya 238

Woodward v Council of the Fort McMurray & Ors; Cockerill v Fort McMurray First Nation #468 & OrsFederal Court, Canada 326

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table of cases by name

Table of casesBy jurisdictionAfricaBotswana

Oatile v Attorney General 339

Kenya

Weheire v Attorney-General 238

Lesotho

Officer Commanding Correctional Services – Mokhotlong & Anor v Selepe 328

Malawi

Numeri v Republic 308

Namibia

Alexander v Minister of Justice & Ors 306

South Africa

Albutt v Centre for the Study of Violence and Reconciliation & Ors 228

Kylie v Commission for Conciliation Mediation and Arbitration & Ors 352

Nokotyana & Ors v Ekurhuleni Metropolitan Municipality & Ors 300

Uganda

Mifumi (U) Ltd & Ors v Attorney General & Anor 348

Mugoya Kyawa Gaster v Attorney General 274

Zimbabwe

Gramara (Private) Limited & Anor v Government of the Republic of Zimbabwe & Ors 303

AmericasBelize

Prime Minister of Belize & Anor v Vellos & Ors 319

Bermuda

Marshall & Ors v Deputy Governor of Bermuda & Ors 253

Canada

Canada (Prime Minister) v Khadr 309

Grant & Anor v Torstar Corp & Ors 262

Helmut Oberlander v The Attorney General of Canada 316

Hughes & Anor v Elections Canada 244

R v Basi & Ors 281

R v Nasogaluak 343

R v National Post 266

Smith v Canada (Minister of Citizenship and Immigration) 335

Woodward v Council of the Fort McMurray & Ors; Cockerill v Fort McMurray First Nation #468 & Ors 326

Trinidad & Tobago

Johnson and Balwant v The Attorney General of Trinidad and Tobago 256

AsiaIndia

Association for Social Justice & Research v Union of India & Ors 231

Parasnath Tiwari & Anor v Central Reserve Police Force & Anor 314

Selvi & Ors v State of Karnataka & Anor 285

Shabana Bano v Imran Khan 347

Surender Paswan & Ors v State of Bihar & Ors 257

Syed Bashir-ud-din Qadri v Nazir Ahmed Shah & Ors 246

Pakistan

Ahmed & Ors v Federation of Pakistan 346

Aziz-ud-Din & Ors v Federation of Pakistan 258

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EuropeUnited Kingdom

Al Rawi & Ors v The Security Service & Ors 275

Birmingham City Council v Clue 297

Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors 270

In Re B (A Child) 236

McInnes v Her Majesty’s Advocate (Scotland) 283

Norris v Government of United States of America 291

R (on the application of Barclay & Ors) v Secretary of State for Justice & Ors 322

R (on the application of E) v Governing Body of JFS & Ors 249

R (on the application of F) & Anor v Secretary of State for the Home Department 329

R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department 332

R v Horncastle & Ors 277

PacificAustralia

Habib v Commonwealth of Australia 225

MRR v GR 232

New Zealand

Atkinson & Ors v Ministry of Health 242

B v K 234

Excell v New Zealand Police 312

McKean v The Attorney-General for and on behalf of The Department for Corrections & Anor 341

Papua New Guinea

Boni & Ors v Tolukuma Gold Mines Ltd & Ors 273

Solomon Islands

Regina v Malasa 296

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Welcome to this third issue of Volume 7 of the Commonwealth Human Rights Law Digest, which summarises cases decided by courts in 19 different Commonwealth jurisdictions across 30 major issues.

As a complement to this publication, the interights website hosts a free-to-access search-able database of decisions which appear in the Digest, along with many more (http://www.interights.org/commonwealth-and-international-law-database/index.html). We also publish a free monthly email bulletin, CommonwealthNet, containing brief summaries of recent important human rights cases from around the Commonwealth and common law world, with links to the full judgments (to subscribe see http://www.interights.org/commonwealthnet/index.html).

Commentary

Accountability & impunityThe liability of state authorities for complicity in illegal acts abroad was in issue in Habib v Commonwealth of Australia. The case concerned an Australian citizen, who had been detained and interrogated by foreign authorities in several foreign jurisdictions, including Guantanamo Bay, who sought to pursue a civil claim for damages against Australia on the basis that its agents had aided, abetted and counselled his torture and inhumane treatment by the foreign authorities. Australia, aiming to rely on the common law act of state doctrine, argued that the claim was not justiciable, as in order for it to be determined a court would have to assess the lawfulness of the acts of the foreign authorities done within the territories of foreign states. The Federal Court of Australia rejected this argument and held that the claim for damages could proceed. The majority found that where there are allegations of grave human rights breaches or serious violations of international law by state agents, the act of state doctrine is inapplicable. Perram J considered that the creation of such an exception was unnecessary, as the doctrine does not bar a court from determining whether the state acted within the law and thus the claim could proceed on this basis.

Albutt v Centre for the Study of Violence and Reconciliation & Ors concerned the question of whether, in granting pardon to persons convicted of offences which they alleged to be politically motivated, the President of South Africa was required to grant the victims of the offences a hearing. The Constitutional Court answered this question in the affirmative. The court reasoned that denying a hearing would be contrary to the constitutional values of accountability, responsiveness and openness. It also found, given that the objectives of the proposed pardons were national unity and national reconciliation, that denial of a hearing would be irrational. Furthermore, the testimony of the victims would be directly relevant in assessing whether the offences were politically motivated and therefore to whether a pardon should be granted.

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ChildrenDespite the enactment of the Prohibition of Child Marriage Act in 2006, child marriage remains a problem in India. Nonetheless, enforcement cases do come before the courts, such as Association for Social Justice & Research v Union of India & Ors, in which the Delhi High Court relied on the Act in returning a 17-year-old girl, who had consensually mar-ried a 35-year-old man, to the custody of her parents. The court noted that the Act sought to protect children from violations of their human rights occasioned by early marriage, and suggested that previously courts had been too willing to return young brides to their husbands in reliance on the Hindu Marriage Act 1955.

Two cases from Australia and New Zealand illustrate the difficulties inherent in deter-mining children’s residence in cases involving separated parents living far apart. In MRR v GR the Australian High Court clarified the provisions relating to parenting orders in the Family Law Act 1975 in holding that, where a mother was living far away from the couple’s original home in financially and psychologically difficult circumstances (in order to be near the father’s new place of work), it was clearly not reasonably practicable to require her to remain there for the purposes of an equal time parenting order. Accordingly, the court should have considered allowing her to return home and making a substantial and significant time parenting order, even where equal time parenting was in the child’s best interests. In B v K, however, the New Zealand Court of Appeal held that a parent’s free-dom of movement must yield to a child’s best interests, and ordered that two children should remain in New Zealand despite the mother’s wishes to return to live with her fam-ily in Australia. The court held that the mother would be able to overcome the difficulties she faced in New Zealand in order to promote her children’s best interests. B v K did, however, involve complex facts, most notably that the father was not realistically able to visit the children in Australia on account of his immigration status.

In In Re B (A Child), another case concerning the determination of a child’s residence, the UK Supreme Court confirmed the established UK law principle that a child’s welfare is the paramount consideration in residence disputes. Whilst parenthood is an important factor in assessing what is best for the child’s welfare, it is by no means determinative; on the facts of the case, it was ordered that the child in question be returned to his grand-mother’s care.

Cruel, inhuman or degrading treatmentIn Weheire v Attorney-General, the High Court at Nairobi found violations of Articles 72 and 74 of the 1969 Kenyan Constitution (in force at the time), protecting the rights to liberty and to be free from torture and inhuman or degrading treatment or punishment, where an individual had been detained in an unofficial police station and subjected to vari-ous forms of ill-treatment, including interrogations whilst naked, hungry, thirsty and/or sleep-deprived, assaults, threats and poor detention conditions. The court refused to allow procedural arguments by the Attorney General to bar the claim and, although it had been brought 17 years after the acts complained of, the court condoned the delay and further held that s 3 of the Public Authorities Limitations Act (Cap.39) was inconsistent with the Constitution insofar as it proscribed a limitation period for constitutional claims.

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DisabilityA state policy of refusing to allow family members of disabled persons entitled to receive care services to provide them with such care services for payment was scrutinised by the New Zealand Human Rights Review Tribunal in Atkinson & Ors v Ministry of Health. The State sought to justify the policy, suggesting that families should not be paid for ‘natural support’ and citing equality, independence, fiscal sustainability and non-commercialisa-tion of family relationships as legitimate aims in denying payment. The tribunal was not persuaded, however, and determined that the policy constituted unjustified discrimina-tion on the basis of family status, contrary to the New Zealand Bill of Rights Act.

The issue of accessibility was before the Canadian Human Rights Tribunal in Hughes & Anor v Elections Canada, specifically in relation to polling stations. An individual with mobility difficulties twice attended a voting location and twice could only vote with assis-tance, despite a complaint to the relevant authorities after the first incident. The tribunal highlighted the importance of the right to vote and determined that the State had com-mitted two separate breaches of the Canadian Human Rights Act 1985, first in denying the complainant barrier-free access to voting and second in denying him a service, given its sub-standard investigation into his complaints. The tribunal awarded damages and laid down an eight-point plan for Elections Canada to follow in improving its procedures.

In the Indian case of Syed Bashir-ud-din Qadri v Nazir Ahmed Shah & Ors, an unsuccessful applicant for a teaching post challenged the appointment of a cerebral palsy sufferer to the post, on the basis that his disability rendered him unsuitable for the role. Despite mul-tiple good reports from the school authorities, the High Court ordered that the successful appointee be reengaged in a ‘suitable alternative’ position. However, this decision was reversed by the Supreme Court, which held that the lower court’s ruling was incompatible with the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1998 and ordered that the teacher be allowed to return to his duties.

EqualityThe widely reported UK case of R (on the application of E) v Governing Body of JFS & Ors involved a challenge to a school admissions policy, specifically the restriction of entry to children who satisfied certain requirements relating to Orthodox Judaism. A child denied entry because he did not meet these conditions (on account of his mother’s Italian nationality and non-Orthodox conversion) challenged them as racially discriminatory and therefore unlawful. A majority of the Supreme Court upheld the complaint, determining that the policy amounted to direct and indirect discrimination on the grounds of race. The majority rejected the notion, favoured by the minority, that the policy distinguished on religious and not racial grounds, on the basis that the test involved consideration of matrilineal descent. Four of the nine Law Lords did not consider that direct discrimination was made out, whilst two held the same view for indirect discrimination.

In two cases of alleged sex discrimination before the Judicial Committee of the Privy Council, from Bermuda and Trinidad & Tobago, the Committee found that although

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discrimination was established, it was not unlawful. In Marshall & Ors v Deputy Governor of Bermuda & Ors, an individual complained that only men were subject to compulsory conscription to the Bermudan armed forces. The Committee found that the policy dis-criminated against men but held that the difference in treatment was permissible, as to hold otherwise would be to misinterpret the employment discrimination provisions in s 6 of the Human Rights Act 1981. Johnson and Balwant v The Attorney General of Trinidad and Tobago concerned regulations that allowed married female employees to be dismissed if their family obligations were affecting their ability to perform their duties efficiently. Once again, the Committee noted the sex discrimination inherent in this provision, given that women were subject to a ground for dismissal not applicable to men, but ruled that this was not unconstitutional, as by virtue of s 6 of the Constitution the regulations were immune from scrutiny under the relevant equality provisions. In both cases, despite finding that strict legislative interpretation warranted its conclusions, the Committee expressed discomfort and hinted that the relevant legislation should be reviewed.

Two further work-related equality cases required the Supreme Courts of India and Pakistan to address allegations that employment appointments were unlawful on account of having been made otherwise than by merit. In a case concerning the appointment of village watchmen in Madhepura District, Bihar, the Indian Supreme Court held that the previous practice of filling posts on an inheritance basis must yield to a merit-based selec-tion process. Surender Paswan & Ors v State of Bihar & Ors thus confirmed a new, post-constitutional approach to a traditional village practice. In Aziz-ud-din & Ors v Federation of Pakistan, the Supreme Court of Pakistan held that, although promotion was not a right, the Civil Servants Act 1973 required that promotion within the civil service be based on merit. In this case, junior employees had been promoted whilst eligible senior officers had been ignored, with the result that Article 4 of the Constitution had been violated. An argument by the State that its system of promotion was motivated by a desire to maintain gender balance was rejected on the basis that this contravened Article 25(2) of the Constitution.

ExpressionA new defamation defence was introduced into Canadian law by the Supreme Court in Grant & Anor v Torstar Corp & Ors, namely ‘responsible communication on matters of pub-lic interest’. In the court’s opinion, the absence of such a defence meant that Canadian law gave insufficient weight to the important constitutional value of freedom of expres-sion. As the name suggests, the new defence is designed to protect journalists who act reasonably and responsibly in publishing information relating to a matter of public inter-est, even in circumstances where they are unable to prove its absolute truth. It is for the judge to decide whether or not a publication deals with a matter of public interest, and for the jury to determine whether publication was responsible. In order to prove that s/he acted responsibly, a journalist is required to show that s/he was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

In another Canadian case, the Supreme Court dealt with the issue of confidential jour-nalist sources, confirming that there is no constitutional right to their protection. R v National Post involved an appeal by a news organisation against a search warrant and assistance order granted to the Royal Canadian Mounted Police to enable recovery of a

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forged document for forensic testing. The document, which purported to show improper financial behaviour by the President, had been passed to a journalist by a confidential source, whom the journalist believed to be reliable. The court upheld the warrant and order, reasoning that the public interest in the investigation of crime outweighed the public interest in protecting confidential sources in this case, particularly given that the document was itself the actus reus of the crime. The court laid down the procedure to be followed in confidential source cases, holding that courts should apply the Professor Wigmore criteria for establishing confidentiality privilege at common law when deciding whether or not to order source disclosure.

Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors, a case before the UK Supreme Court, involved a request from the press to lift anonymity orders that had been granted to persons subject to freezing orders because of their perceived involvement in terrorism. As with many media-related cases in the UK, this claim required the court to balance the press’ right to freedom of expression under Article 10 of the European Convention on Human Rights against an individual’s right to respect for his private and family life under Article 8. The court reviewed the principles applicable in such cases and found that, in this case, the balance came down in favour of the media. The individuals would be reported as persons suspected of involvement in terrorism, as opposed to persons actually so involved, and the public’s ability to make this distinction should be trusted. Further, public debate on freezing orders would suffer significantly if the information was not published. Accordingly, the anonymity orders were discharged.

Fair hearingA diverse range of issues are covered in the Fair Hearing section of this edition.

In Boni & Ors v Tolukuma Gold Mines Ltd & Ors, the Supreme Court of Justice in Papua New Guinea reversed a decision of the National Court to strike out a claim for damages, resulting from a one-tonne container of sodium cyanide falling from the sky en route to Tolukuma Gold Mines, on the basis that an amended statement of claim was filed one day late. The court viewed the striking out as an unreasonable exercise of discretion, par-ticularly given that the delay was the result of the court’s refusal to accept the statement on the deadline date.

Mugoya Kyawa Gaster v Attorney General dealt with the impact of pre-trial constitutional violations on the legitimacy of prosecution. An individual had been arrested and detained, and alleged that the conduct of the authorities in bringing him to trial, including denying access to a lawyer and exceeding detention time limits, meant that the Attorney General could not legitimately prosecute him. The Ugandan Constitutional Court disagreed, rul-ing that the Attorney General was exercising his constitutional mandate in prosecuting and that the applicant could seek redress for any constitutional breaches in the civil courts.

The use of ‘closed material procedures’ in UK courts has received significant publicity, and in Al Rawi & Ors v The Security Service & Ors the England and Wales High Court confirmed that these procedures can be utilised in a civil claim for damages. The court found that, although such procedures should only be used in exceptional cases, there was

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no bar in English law, be that statutory, constitutional, procedural or case-law based, to employing them in civil claims.

The UK system governing the admission of hearsay evidence in criminal trials was chal-lenged before the Supreme Court in R v Horncastle & Ors. The case followed a decision from the European Court of Human Rights (Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1) which held that reliance on the statement of a witness not present for cross-examination, where that statement constituted the ‘sole or decisive’ evidence against the accused, breached Article 6(1) and 6(3)(d) of the European Convention on Human Rights. However, the Supreme Court rejected the suggestion that the ‘sole or decisive’ rule need be applied in UK courts, holding that UK law provided adequate pro-tection against unsafe convictions in the admission of hearsay evidence. The court was somewhat critical of the Al-Khawaja judgment, suggesting that the introduction of the ‘sole or decisive’ rule to the ECtHR’s jurisprudence ignored differences between common law and continental legal systems and did not tally with previous European jurisprudence stating that the fairness of a trial must be assessed on a case-by-case basis, viewing each trial as a whole. Incidentally, Al-Khawaja was later revisited by the Grand Chamber, which held that the Supreme Court’s approach in R v Horncastle was consistent with the ECHR.

In R v Basi & Ors, the Canadian Supreme Court dealt with the issue of informer privi-lege, specifically whether or not defence counsel should be entitled to attend hearings to determine whether or not the privilege applies. The court answered this question in the negative, ruling that an accused’s right to be present at trial does not extend to such hear-ings and that allowing defence counsel to attend would place undesirable strain on the lawyer-client relationship. The court stressed that informer privilege is nearly absolute, only yielding where the accused’s innocence is at stake. However, it held that defence absence is only required to the extent necessary to protect the informant’s identity, and that judges have broad discretion to craft procedures to allow the defendant to realise his or her legitimate interest in being present at such hearings.

In McInnes v Her Majesty’s Advocate (Scotland), the UK Supreme Court held that a failure by the Crown to disclose evidence that it is required to disclose is incompatible with the accused’s right to a fair trial. However, the court went on to hold that such a failure does not automatically render a trial unfair. The question for the appeal court is whether, after taking full account of all the circumstances of the trial including the non-disclosure, the jury’s verdict should nonetheless be allowed to stand. If the jury might reasonably have come to a different conclusion had the material been disclosed, then that question will be answered in the negative.

An interesting case from the Indian Supreme Court dealt with the legitimacy of various physiological interrogation techniques, namely polygraph testing, narcoanalysis and brain mapping. In Selvi & Ors v State of Karnataka & Anor, several individuals complained that they had been forcibly subjected to these examinations in the course of criminal investi-gations and that this violated their rights under Articles 20(3) and 21 of the Constitution. The Supreme Court agreed. The court held that evidence obtained via involuntary admin-istration of these tests, whether that be direct testimony or evidence discovered as a result

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of it, could not be admitted in a criminal trial without violating the right to be free from self-incrimination. The court also held that forcing individuals to submit to the tests breached the right to privacy and to a fair trial and constituted cruel, inhuman or degrad-ing treatment.

Family lifeThe reliance on Article 8 of the European Convention on Human Rights in extradition cases was examined by the UK Supreme Court in Norris v Government of United States of America. Mr Norris was an elderly man with mental and physical health problems, family in the UK and a wife suffering from severe mental illness, whose extradition to face trial for obstruction of justice charges was sought by the USA. In determining that, despite the obvious interference with family life, the extradition should proceed, the court held that there is no legal ‘exceptionality’ threshold that an individual must meet before their Article 8 claim will succeed. Instead, courts must in each case balance the public interest in extradition against its effect on individual human rights. The fact that the public inter-est in extradition will almost always outweigh Article 8 concerns is simply a fact, and does not impose any legal threshold.

Regina v Malasa involved the sentencing in the Solomon Islands of a pregnant young woman to three years’ imprisonment for fraud offences. On appeal, it was successfully argued that the court paid insufficient attention to the pregnancy and accordingly the sentence was reduced to two years’ imprisonment suspended for two years.

In Birmingham City Council v Clue, the Court of Appeal for England and Wales dealt with the issue of state support for overstayers. The Council in this case had refused to provide Mrs Clue and her children with assistance, reasoning that they could enjoy a family life in Jamaica and thus that their removal would not breach Article 8 of the European Convention on Human Rights. However, the Court of Appeal held that this approach was misguided, as it meant that the Council had effectively determined Mrs Clue’s application for leave to remain, thus exercising the immigration functions of the Home Secretary. The court stated that, unless an individual’s application for leave to remain is hopeless or abusive, local authorities cannot refuse assistance where this would have the effect of forcing the applicant to leave the country and thereby forfeit his or her application. Local authority budget considerations are simply not relevant in these circumstances.

HousingNokotyana & Ors v Ekurhuleni Metropolitan Municipality & Ors involved a dispute about the provision of basic services to an informal settlement. Residents of the settlement sued their municipality, arguing that they should be provided with ‘ventilated improved pit latrines’ and high-mast lighting. Three years earlier, the municipality had submitted a request to the relevant authorities to upgrade the settlement to a formal township, and if this request were approved then the residents would become automatically entitled to the services they sought. The South African Constitutional Court dismissed the residents’ claims, noting that neither Chapter 12 nor Chapter 13 of the Housing Code required the municipality to provide the relevant services, as there was no emergency situation and the residents did not live in a township. Recognising that the authorities’ failure to determine

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the municipality’s application for township status was largely to blame for the residents’ plight, the court condemned the delay as unconstitutional and ordered that a decision be made within 14 months.

International and regional proceduresThe Zimbabwean Government’s programme of land reform has attracted much inter-national commentary, and the case of Gramara (Private) Limited & Anor v Government of The Republic of Zimbabwe & Ors illustrates its effects on an individual level. The applicants had been evicted from their land pursuant to the programme. They sought to have a deci-sion from the Southern African Development Community Tribunal, which had held that the land reform programme was in breach of the SADC Treaty and that the Government should protect the applicants’ rights and pay them compensation, enforced in Zimbabwe. However, although the Harare High Court agreed that the tribunal had had jurisdiction to hear the claim, it held that its decision could not be enforced in Zimbabwe as this would be contrary to public policy, given that it would require the Government to contravene the Constitution (as the land reform programme is constitutionally recognised), undermine the Zimbabwean Supreme Court (which had previously held the programme to be consti-tutional) and result in the eviction of numerous persons currently living on land acquired under the programme.

Liberty & securityTwo African cases in this edition deal with the issue of bail, with both highlighting that flight risk is an important consideration in assessing whether or not bail should be grant-ed. In Alexander v Minister of Justice & Ors, a Namibian case, a challenge was made to the constitutionality of s 21 of the Extradition Act 1996, which provided that once a magistrate found that a person could be extradited then s/he must be denied bail until the extradition was effected or a successful appeal completed. The Supreme Court ruled that this blanket ban on bail was a disproportionate limit on the right to liberty and therefore unconstitu-tional, given that no account was taken of flight risk and individuals could end up being imprisoned for a longer term than would be imposed as a sentence for their crime(s). The second case, Numeri v Republic, concerned an individual who had been arrested and detained on suspicion of murder, simply because of an association with another suspect. In ordering that he be released on bail, the Malawi High Court recalled the presumption in favour of bail, noted the lack of evidence against the suspect and the unlikelihood of the trial occurring imminently, and stressed that bail should generally be granted where the suspect is unlikely to abscond.

Canada (Prime Minister) v Khadr is one of a series of cases brought against the Canadian Government by Omar Khadr, a Canadian citizen detained in Guantanamo Bay following allegations that, when he was 15, he threw a grenade which killed an American soldier.1 In this particular case, Mr Khadr sought judicial review of the Government’s refusal to repatriate him to Canada, arguing that it infringed his right to liberty and security of per-son under s 7 of the Charter of Rights and Freedoms. The Supreme Court held that Mr Khadr’s s 7 rights were violated by the Canadian authorities’ conduct in providing inter-view intelligence to US authorities in furtherance of the illegal regime at Guantanamo Bay and in the knowledge that Mr Khadr had been subjected to breaches of his fundamen-

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tal rights. However, the court declined to order repatriation, reasoning that such an order would infringe on the Government’s prerogative power over foreign affairs. Mr Khadr is currently serving an eight-year sentence for war crimes following a plea deal with the USA but, despite its commitment to do so, Canada has so far not transferred him to a domestic prison.

The impact of disability on sentencing was in issue before the New Zealand High Court in Excell v New Zealand Police. The appellant contested a seven-month sentence imposed for possession of child pornography, on the basis that the judge had paid insufficient regard to his suffering from Asperger’s and Kallmann syndromes. The High Court agreed, noting that the conditions reduced the appellant’s culpability, his Asperger’s syndrome would make prison particularly difficult and he had demonstrated high motivation for treatment. The custodial sentence was replaced with two years’ intense supervision with attached conditions and 300 hours of community work.

LifeIn Parasnath Tiwari & Anor v Central Reserve Police Force & Anor, the applicant’s son was shot following misidentification by a police officer. The applicant sought compensation for the death, on account of mental agony and financial loss suffered. The High Court awarded Rs. 1 lakh, but the Supreme Court considered this inadequate in the circum-stances and raised the amount to Rs. 2 lakh.

NationalityThe appellant in Helmut Oberlander v The Attorney General of Canada challenged the revocation of his citizenship by Canadian authorities, a decision made on account of his failure to disclose that during World War II he had been a member of a military unit operating behind the German army’s front line, agreed by both parties to be a ‘limited brutal purpose organisation’. The Federal Court of Appeal found that membership of such an organisation creates a rebuttable presumption of complicity in its activities and that the appellant had been complicit. However, by a 2-1 majority, the court held that the authorities had erred in failing to consider the justification of duress, which the appellant contended was relevant as he had been conscripted to join the unit and would have been executed on desertion, and accordingly the case had to be reconsidered.

Political participationIn Prime Minister of Belize & Anor v Vellos & Ors, a case from Belize with a complex factual background, the Judicial Committee of the Privy Council was called upon to determine whether the Prime Minister of Belize was required to hold a referendum in relation to a bill purporting to make substantive alterations to the constitutional rights to liberty and property. The Privy Council, taking into account the interaction between several different pieces of (proposed) legislation, ruled that the legislature is required to hold a referendum in relation to bills seeking to amend the fundamental rights and freedoms in Part II of the Constitution; that this requirement is independent from the legislative process of amend-ing the Constitution, thereby serving a consultative function and not imposing a statutory requirement; and that the requirement arises when a bill is introduced and given its first reading. However, on the facts of the case, no referendum was necessary.

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R (on the application of Barclay & Ors) v Secretary of State for Justice & Ors concerned Article 3 of the First Protocol to the European Convention on Human Rights, which requires con-tracting parties to hold free elections which will ‘ensure the free expression of the opinion of the people in the choice of the legislature’. The appellants contended that the political system on the Channel Island of Sark contravened Article 3 because (a) two prominent members of the unicameral parliament were unelected and (b) aliens were not entitled to stand for election to other political posts. The UK Supreme Court reviewed jurisprudence from the European Court of Human Rights relating to Article 3, distilling nine key prin-ciples. The court went on to dismiss the appeal, concluding firstly that the existence of the two unelected posts did not inhibit the free expression of the people in the choice of their legislature, given that 500 persons voted for 28 elected political posts, and secondly that it was an established principle that Article 3 rights belong to citizens and not to aliens.

Voting rights for non-resident members of a First Nation band were at issue before the Canadian Federal Court in the conjoined cases of Woodward v Council of the Fort McMurray & Ors and Cockerill v Fort McMurray First Nation #468 & Ors. The applicants were not entitled to vote for the band’s chief and council because, although they were over 18 and members of the band, they did not live on a band reserve, and this residence requirement was challenged as discriminatory. The court agreed that the requirement was discrimina-tory under s 15 of the Charter of Rights and Freedoms but held that, given that the council dealt predominantly with issues affecting residents, it was a reasonable and proportionate limit on the right to equality and therefore justifiable under s 1 of the Charter.

Private LifeA strip search of a prison officer was held to be a justified response to the disappearance of an envelope of money in Officer Commanding Correctional Services – Mokhotlong & Anor v Selepe. In reaching this conclusion, the Lesotho Court of Appeal drew attention to the facts that the complainant was one of three officers to enter the room where the money had been lost prior to the discovery of its disappearance and that the search was conducted in line with prison rules in a dignified fashion.

In the UK, individuals sentenced to 30 months’ imprisonment or more for sexual offences are required to keep the police informed of their residences and travel plans indefinitely. Traditionally, there was no right to review of these ‘notification requirements’, but this position was successfully challenged before the Supreme Court in the case of R (on the application of F) & Anor v Secretary of State for the Home Department. The court determined that, although notification requirements themselves are of unquestionable importance, the inability of convicted individuals to challenge their continuation was a disproportion-ate and therefore unjustifiable interference with the right to private and family life under Article 8 of the European Convention on Human Rights.

RefugeesR (on the application of JS (Sri Lanka)) (Respondent) v Secretary of State for the Home Department (Appellant) concerned an application for asylum in the UK by a Sri Lankan Tamil previously active in the Liberation Tigers of Tamil Eelam (which was regularly involved in military operations against the Sri Lankan army). The Home Secretary

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rejected the application on the basis that the applicant was complicit in war crimes and crimes against humanity through his voluntary membership of the Tigers and so protec-tion under the Refugee Convention 1951 was precluded by Article 1F(a). The UK Supreme Court held that the Home Secretary had erred in her approach, in the process casting doubt on the guidance provided in the starred Immigration Appeal Tribunal decision of Gurung [2002] UKIAT 04870. The Supreme Court clarified that, when dealing with this type of case, courts should focus on the determining factors relating to Article 1F (which were laid out in the judgment) as opposed to the sub-categorisation of an organisation. Furthermore, the court stressed that Article 1F liability is not comparable to joint criminal enterprise liability under domestic law, and that courts should focus on the wider concept of common design.

The applicant in Smith v Canada (Minister of Citizenship and Immigration) was a homo-sexual woman who had deserted the US army and fled to Canada, following harassment and threats of violence on account of her sexual orientation whilst in the army. Ms Smith claimed refugee protection in Canada, asserting that she feared persecution on account of her sexual orientation and a risk to her life or of cruel and unusual treatment or punish-ment if returned to the US. Her claim was rejected by the Canadian authorities, on the basis that the US was capable of protecting her and would subject her to fair prosecution rather than persecution. The Canadian Federal Court, however, found multiple flaws in the authorities’ approach, including a failure to appreciate that Ms Smith could be court-martialled simply for being gay, errors in assessing whether she attempted to avail her-self of state protection, and ignoring or dealing inappropriately with evidence presented in support of her claim. In the circumstances, the court concluded that the authorities’ decision to deny refugee protection was unreasonable and allowed Ms Smith’s claim for judicial review.

RemediesConstitutional damages for infringement of fair trial rights were at issue in two of this edition’s cases. In Oatile v Attorney General, the first case by a court in Botswana to deal with constitutional damages, the Lobatse High Court awarded compensation to an indi-vidual who had been subjected to a 12-year delay between charge and trial, a violation of the right to be tried within a reasonable time. The court explained how constitutional damages should be assessed and stressed that they are independent of private law rem-edies. By comparison, damages were not awarded in McKean v The Attorney-General for and on behalf of The Department for Corrections & Anor, where a prison disciplinary hear-ing breached rules of natural justice. The court in New Zealand held that judicial review offered an effective remedy, the authorities had acted promptly and the breaches in ques-tion were not so serious as to require damages.

The key question before the Canadian Supreme Court in R v Nasogaluak was whether violation of the constitutional right to security of person by police officers during arrest could operate to reduce a criminal sentence below the mandated statutory minimum. The court confirmed that state misconduct can operate to reduce sentences but stated that there is generally no discretion to go below a statutory minimum. However, s 24(1) of the Charter of Rights and Freedoms could operate to make such a reduction where either

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(a) the statutory limit is found to be unconstitutional or (b) as a remedy for particularly egregious conduct by state agents.

Separation of powersIn Ahmed & Ors v Federation of Pakistan, the Pakistan Supreme Court struck down the appointment of two judges as unconstitutional, as the President had failed to consult with the Chief Justice, in line with Article 177 of the Constitution.

WomenThe cases in the Women section of this edition both deal with the rights of women in marriage. In Shabana Bano v Imran Khan, a case before the Indian Supreme Court, it was held that a divorced Muslim woman is entitled to claim maintenance from her ex-husband, even after the expiry of iddat, as long as she does not remarry. Accordingly, the ex-wife in this case could obtain maintenance from her estranged husband, after he abandoned her and their child because of an alleged insufficiency in dowry payment. In Mifumi (U) Ltd & Ors v Attorney General & Anor, a women’s rights NGO and 12 individu-als challenged the constitutionality of bride price arrangements in Uganda. A majority of the Constitutional Court rejected the challenge, holding that such arrangements are a valid option for couples wishing to marry and that generally both parties consent to their use. Mukasa-Kikonyogo DCJ did, however, suggest that forcing an individual to submit to such an arrangement would violate the constitutional right to free and voluntary mar-riage. The court appeared concerned to protect the arrangements as a traditional African custom, and rejected arguments suggesting an increased risk of domestic abuse in bride price marriages.

WorkA case before the South Africa Labour Appeal Court, Kylie v Commission for Conciliation Mediation and Arbitration & Ors, concerned the interesting question of whether a sex worker, employed under an illegal contract by virtue of the nature of her employment, could claim for unfair dismissal. At first instance the judge answered the question in the negative, on the basis that courts should not sanction illegal behaviour, but this ruling was reversed on appeal. The Labour Appeal Court found that as s 23(1) of the Constitution states that ‘everyone has the right to fair labour practices’, such protection should not be denied to sex workers and accordingly they have the right to claim unfair dismissal. The court ruled that although sex workers do not enjoy all employment rights, as the denial of some is necessary to uphold the criminal law, they are entitled under s 23(1) to be treated with dignity by employers. However, courts should not order the reinstatement of sex workers, as such would be contrary to public policy, and further compensation may not be available. Instead, remedies for unfairly dismissed sex workers should be decided on a case-by-case basis, with the court balancing the prohibition on the enforcement of immor-al or illegal contracts against the constitutional values of freedom, equality and dignity.

1. For other cases involving Mr Khadr, see Commonwealth Human Rights Law Digest Volumes 6.1, 6.3 and 7.1.

Summaries of judicial decisions

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Accountability & impunity immunities | act of state doctrine | inapplicable to grave breaches of human rights

HABIB V COMMONWEALTH OF AUSTRALIA federal court australiablack cj, perram and jagot jj 25 feb 2010

In October 2001 H, an Australian citizen, was arrested and detained by Pakistani authori-ties, in the wake of the 11 September 2001 terrorist attacks on the USA. He was then trans-ported to Egypt, then to Afghanistan (in the custody of the USA) and then, in May 2002, to Guantanamo Bay. H was interviewed by CA state officials in Pakistan and several times at Guantanamo Bay, and CA was aware that at some point H was detained in Egypt. H was released in January 2005 without charge and repatriated to Australia.

H alleged that he was tortured and inhumanely treated by foreign officials from Pakistan, Egypt and the USA while he was detained by those officials in Pakistan, Egypt, Afghani-stan and Guantanamo Bay, in violation of (a) s 61 of the Crimes (Torture) Act 1988 and (b) either s 7(1)2 of the Geneva Conventions Act 1957 or ss 268.26 and 268.743 of the Criminal Code 1988, depending on when the acts took place. The basis for H’s claim against CA was that CA officials committed the torts of misfeasance in public office and intentional but indirect infliction of harm by aiding, abetting and counselling the torture and inhumane treatment inflicted by the foreign officials. H contended that CA officials participated in interrogations, were aware of his mistreatment by foreign officials (either because they witnessed it or because they would have seen his physical injuries), explicitly supported his continued detention and provided information to foreign officials. By virtue of s 11.24 of the Criminal Code, if CA officials did aid, abet or counsel the commission of these of-fences, they would be held to have committed the offences themselves. H maintained that this was the case and that therefore CA officials acted outside of their lawful authority. H sought to pursue a civil claim for damages against CA.

In order to prove that CA officials aided, abetted or counselled the offences, H needed to first prove that the foreign officials committed the offences.5 Because of this, CA argued that H’s claims should be dismissed, as their determination would require an assessment of the lawfulness of acts of foreign states done within the territories of foreign states and, relying on the common law act of state doctrine, the claims were thus not justiciable.6

In finding the act of state doctrine to be inapplicable in this case and permitting H to con-tinue his claim for compensation against CA, it was held that:

Per Jagot J (Black CJ concurring):

(1) Case law has developed to recognise the existence of a ‘public policy exception’ to the act of state doctrine (Underhill v Hernandez (1897) 168 US 250, R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ and

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numerous other cases from Australia and other jurisdictions considered). This devel-opment has been in tandem with developments in international law, in particular in-ternational humanitarian law, such as the Geneva Conventions of 1949 and Additional Protocols of 1977 and the Torture Convention. It is now the case that certain violations of international law (including torture) are recognised to involve contraventions of peremptory norms, i.e. norms which are accepted by all nations and from which no derogation is permitted. Torture offends the ideal of a common humanity and Parlia-ment has declared it to be a crime wherever outside Australia it is committed. Notably the Crimes (Torture) Act 1988 is directed to the conduct of public officials and persons acting in an official capacity irrespective of their citizenship and irrespective of the identity of their government.

(2) It is right that the common law develops in line with public policy ideals and universal norms. The aforementioned developments in the law point to a conclusion that the act of state doctrine does not exclude judicial determination of alleged acts constitut-ing grave breaches of human rights and/or serious violations of international law. As H’s case involves such allegations, CA cannot succeed in its quest to have the claim dismissed on the basis of the act of state doctrine.

(3) If the foreign officials allegedly responsible for H’s torture were sued in an Australian court then they would have a valid defence of sovereign immunity, as would the Aus-tralian officials if sued in a foreign court. However, CA has no defence of sovereign immunity in an action in an Australian court. If CA’s argument on the act of state doctrine was accepted, then Commonwealth officials could not be held accountable in any court for their alleged breaches of Australian laws having extra-territorial effect. By contrast, if H’s argument is accepted then each set of government officials could be held accountable for their actions in their national courts (Doe I v Unocal Corp (2002) 395 F 3d 932 considered).

(4) In H’s case there are clear, identifiable standards by which the conduct of the Commonwealth officials may be judged, i.e. the applicable Australian statutes and international law.

(5) The Crimes (Torture) Act 1988, the Geneva Conventions Act 1957 and the Criminal Code 1988 are Acts of Parliament which (a) set standards against which the conduct (including the conduct of foreign officials outside Australia) may be subject to judicial scrutiny by Australian courts, and (b) set limits on the power of the Commonwealth and its officials. The provisions of these Acts suggest that Parliament intended issues arising under them to be subject to judicial determination. The act of state doctrine is part of the common law and thus must yield to any parliamentary intention. Contrary to CA’s arguments, it is clear that H’s claim is a constitutional claim and not merely a common law claim for damages, as in determining the claim the court will need to decide whether or not CA acted outside the scope of its lawful authority. Therefore, the act of state doctrine cannot displace the legislation-derived jurisdiction of the Australian courts to try H’s case. Indeed, the courts have both the power and the con-stitutional obligation to determine H’s claim; no common law doctrine can preclude the judiciary from scrutinising the limits of CA power.

Per Perram J:

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(1) The judiciary has a duty ‘to say what the law is’ (dicta of Marshall CJ in Marbury v Madison (1803) 5 US 137 at p 177, dicta of Fullagher J in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at p 262 and dicta from several other Australian cases applied). Courts have jurisdiction to determine whether or not the legislature and the executive act within their constitutional powers; indeed they have a judicial obligation to do so and this is a ‘basic element of the rule of law’ (Kartinyeri v Commonwealth (1998) 195 CLR 337, Attorney-General for Western Australia v Marquet (2003) 217 CLR 545, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and other Australian au-thorities applied). This approach is consistent with Chapter III of the Constitution.

(2) No statute may bar the right of a party to take proceedings against CA in respect of the scope of its constitutional power (Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 and Commonwealth v Mewett (1997) 191 CLR 471 applied). It follows that common law doctrines cannot bar this right (dicta of Gummow and Kirby JJ in Commonwealth v Mewett (1997) 191 CLR 471 at 548 and dicta of Gleeson CJ in British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 44 applied). Therefore, whenever a question arises as to the limits of Commonwealth power it is justiciable and the courts cannot be barred by statute or common law from entertain-ing it. Parliament may vary the substantive law, for example by abolishing a tort, but it cannot order courts to ignore questions concerning whether CA has acted within the law. The act of state doctrine has no application where it is alleged that CA officials have acted beyond the bounds of their authority under Commonwealth law.

(3) H’s claim requires the court to determine whether CA officials acted within the law, and therefore the claim cannot be barred by the act of state doctrine (Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 126 FCR 354 distin-guished). Indeed, ‘to the extent that the act of state doctrine would confer immunity from suit on the Commonwealth it is inconsistent with the constitutional orthodoxy of this country and its application is to be rejected in a fashion as complete as it is emphatic’. This is enough in itself to dispose of CA’s arguments; there is no need to determine whether the act of state doctrine is inapplicable where grave breaches of human rights are concerned.

(4) The act of state doctrine is a rule of validity and not one of abstention or deference. If, however, it were the latter then no human rights exception could apply (Buttes Gas and Oil Co v Hammer [1982] AC 888 considered and numerous other decisions from several jurisdictions discussed).

Observations

Per Black CJ:

The authorities point to the clear conclusion that the act of state doctrine is inap-plicable in this case. However, even if the authorities were finely balanced, the same conclusion should be reached. ‘When the common law confronts a choice properly open to it, the path chosen should not be in disconformity with moral choices made on behalf of the people by the Parliament reflecting and seeking to enforce universally accepted aspirations about the behaviour of people one to another.’

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for the applicant: r beech-jones sc, c evatt, j kay hoyle and w nicholson; instructed by peter erman solicitor for the respondent: solicitor-general for the commonwealth s gageler sc, h younan and n wood; instructed by the australian government solicitor

[2010] fcafc 12

Full text of judgment at http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/12.html

pardon | political offences | victims entitled to be heard before decision taken

ALBUTT V CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION & ORS constitutional court south africangcobo cj, moseneke dcj, froneman, 23 feb 2010khampepe, mogoeng, nkabinde, skweyiya, cameron and van der westhuizen jj

Section 84(2)(j)7 of the Constitution gives the President power to grant pardon to people who claim that they were convicted of offences which they committed with a political motive. This case concerned the issue of whether the President was required, prior to the exercise of the power to grant pardon to this group of convicted prisoners, to afford the victims of their offences a hearing. On 21 November 2007, Former President Mbeki announced a special dispensation process (SDP) for applicants for pardon who claimed to have been convicted of politically motivated offences but who had not previously applied for amnesty through the Truth and Reconciliation Commission (TRC). The SDP was explicitly stated to be a method for dealing with the ‘unfinished business’ of the TRC in seeking to promote national cohesion. A multiparty Pardon Reference Group (PRG) was set up on 18 January 2008 to aid the president in the task of considering applications. The PRG decided not to involve victims in the SDP despite appeals from CSVR and various other NGOs, instead stating that the President would simply take such considerations into account. Approaches to the President and Minister for Constitutional Development failed to reverse the exclusion of the victims.

The NGOs thus complained to the High Court, which application was resisted by the State along with A and six other convicted prisoners who were granted leave to intervene. The NGOs’ challenge to the decision to exclude victims from the SDP was on three main grounds: (a) that the decision was irrational, (b) that the context-specific features of the SDP required the President to give the victims a hearing and (c) the exercise of the power to grant pardon constituted administrative action and therefore triggered the duty to hear people affected. The High Court (Pretoria) concluded that the victims had a right to participate in the SDP and to be heard prior to the exercise of the power to grant pardon under s 84(2)(j), and accordingly made an order interdicting the President from granting any pardons in terms of the SDP pending the finalisation of the main application. A and

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the State appealed directly to the Constitutional Court.

In dismissing the appeal and confirming that the victims should be heard before a presi-dential pardon is issued under the SDP, it was held that:

(1) In order to comply with the Constitution, the President’s decision to undertake the SDP, without affording victims the opportunity to be heard, must be rationally related to the achievement of the objectives of the SDP (Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17 at [58] and Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3 at [49] applied). The objectives of the SDP have been specifically stated by the President to be national unity and national reconciliation; whilst the TRC sought to achieve these objectives through amnesty, the SDP seeks to achieve them through pardons. Hearing the victims was an integral part of the TRC amnesty pro-cess and consequently it is also an integral part of the SDP pardon process (Azanian Peoples Organisation (Azapo) & Ors v President of the Republic of South Africa & Ors [1996] ZACC 16 and The Truth and Reconciliation Commission, The Truth and Reconciliation Commission Report (Volume 1, Juta & Co Ltd, Cape Town, 1998) con-sidered). Excluding victims from these processes keeps them ignorant about what precisely happened to their loved ones, denies them access to the truth and perpetu-ates their legitimate sense of resentment and grief, none of which are conducive to national unity and national reconciliation. Accordingly, excluding victims from the SDP is not rationally related to the achievement of the SDP’s objectives and the deci-sion to exclude was therefore irrational.

(2) In deciding whether or not to grant pardon under the SDP, the President has to deter-mine whether or not the crime in question was committed with a political motive. It is difficult to fathom how the President can establish the truth about motive without hearing both the perpetrator(s) and victim(s) of the crime; victims may want to make representations to suggest that the motive was not political. Further, decisions based on the perpetrators’ versions and their supporting political parties are more likely to be arbitrary. Excluding victims from the SDP is entirely inconsistent with constitu-tional principles and values, including accountability, responsiveness and openness,8 and also with the principles of national unity and national reconciliation which underpin the SDP. Consequently, the requirement to afford the victims a hearing is implicit, if not explicit, in the very specific features of the SDP.

(3) This case is concerned with applications for pardon under the SDP, i.e. for crimes committed with a political motive, only and does not apply to other applications for pardon. Therefore, this judgment does not decide the question of whether victims of other categories of applications for pardon are entitled to be heard.

(4) Allowing victims an opportunity to be heard in this context does not require that the President must replicate the procedures, investigations and hearings of the TRC. It is not necessary to specify in advance exactly what the requirement for a hearing neces-sitates in terms of procedure. The requirement may, for example, be satisfied by a general notice inviting submissions to the President from victims of the offences in question.

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(5) There is no need to answer the questions as to (a) whether exercising the power to grant a pardon under s 84(2)(j) of the Constitution is ‘administrative action’ and (b) whether upon its proper construction, the Promotion of Administrative Justice Act 2000 includes within its ambit the power to grant pardon under s 84(2)(j). It is sound judicial policy that only the issues that require determination for proper disposal of a case should be determined, particularly in constitutional matters, and as this case can be disposed of satisfactorily without addressing these questions then this is the course that should be followed.

for the applicant: n b tuchten sc, n riley and m witz; instructed by snaid & edworthy attorneys for the first to seventh respondents: g budlender sc, karrisha pillay, h varney and l kubukeli; instructed by the legal resources centre for the eighth and ninth respondents: m t k moerane sc, i v maleka sc and l gcabashe; instructed by the state attorney for the fifteenth respondent: t j botha; instructed by lombards attorneys

[2010] zacc 4; 2010 (3) sa 293 (cc); 2010 (2) sacr 101 (cc); 2010 (5) bclr 391 (cc)

Full text of judgment at http://www.saflii.org/za/cases/ZACC/2010/4.html

1. Section 6 provides: ‘(1) Where: (a) at any time after the commencement of this Act, a person who: (i) is a public offi-cial or is acting in an official capacity; or (ii) is acting at the instigation, or with the consent or acquiescence, of a public official or person acting in an official capacity; does outside Australia an act that is an act of torture; and (b) that act, if done by the person at that time in a part of Australia, would constitute an offence against the law then in force in that part of Australia; the person is guilty of an offence against this Act, punishable, upon conviction, by the same penalty as would be applicable if the person were found guilty of the offence referred to in paragraph (b). (2) In determining for the purposes of subsection (1) whether or not an act is or was, under the law in force at a particular time in a part of Australia, an offence of a particular kind, regard shall be had to any defence under that law that can be or could have been established in a proceeding for the offence.’

2. This section has now been repealed and replaced with ss 268.26 and 268.74 of the Criminal Code (see endnote 3).

3. Section 268.26 provides: ‘(1) A person (the perpetrator) commits an offence if: (a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and (b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances that estab-lish that the person or persons are so protected; and (d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict. Penalty: Imprisonment for 25 years. (2) Strict liability applies to paragraph (1)(b).

Section 268.74 provides: (1) A person (the perpetrator) com-mits an offence if: (a) the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons; and (b) the person or persons are not taking an active part in the hostilities; and (c) the perpetrator knows of, or is reckless as to, the factual circumstances establish-ing that the person or persons are not taking an active part in the hostilities; and (d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment for 17 years. (2) A person (the perpetrator) commits an offence if: (a) the perpetrator severely humili-ates, degrades or otherwise violates the dignity of the body or bodies of one or more dead persons; and (b) the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and (c) the perpetrator knows of, or is reckless as to, the factual circum-stances establishing that the dead person or dead persons were not, before his, her or their death, taking an active part in the hostilities; and (d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment for 17 years. (3) To avoid doubt, a reference in this section to a person or persons who are not, or a dead person or dead persons who were not before his, her or their death, taking an active part in the hostilities includes a refer-ence to: (a) a person or persons who: (i) are hors de combat; or (ii) are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or (b) a dead person or dead persons who, before his, her or their death: (i) were hors de combat; or (ii) were civilians, medical personnel or religious personnel who were not taking an active part in the hostilities; as the case may be.’

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accountability & impunity | children

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Children custody | marriage in breach of age restriction | bride to remain with parents until age of majority

ASSOCIATION FOR SOCIAL JUSTICE & RESEARCH V UNION OF INDIA & ORS high court (delhi) indiasikri and bharihoke jj 13 may 2010

ASJR filed a petition for a direction in the nature of habeas corpus to trace a minor child C, daughter of P. ASJR contended that C was 11-12 years of age and that her parents had married her for consideration to Y, a 40-year-old man. C was subsequently traced and it was confirmed that she was 17 years of age and had consented to marriage with Y, who was 35, without any pressure. C, Y and P denied that any money was given or received in relation to the marriage. P stated that he had married C to Y because his large family and low income meant that he was not in a position to educate his children. Because C was under 18, her marriage to Y was in violation of the Prohibition of Child Marriage Act 2006 (‘the Act’) and accordingly P and Y remained in custody for breaching the Act. However, the marriage was valid under civil law. The issue for the court was to decide who should have custody of C.

In determining that custody of C should vest with her parents until she reached the age of 18, it was held that:

(1) The rationale of the Act is to prevent the marriage of children on the basis that they are neither psychologically nor physically fit to get married. The implications of child marriage are especially pertinent for girls, and indeed such marriage violates their human rights as it compromises their development, often resulting in early preg-nancy, social isolation and little education, thereby ‘reinforcing the gendered nature of poverty’. Indeed, there are numerous negative effects of child marriage on girls, including: increased health risks relating to sex, pregnancy and childbirth; greater likelihood of being a victim of domestic violence; deprivation of education or mean-ingful work opportunities; a lack of autonomy; inability to make informed choices about sexual relations; and a greater risk of wife abandonment and being widowed, with the result that the girl may suffer discrimination in later life.

4. Section 11.2(1) provides: ‘A person who aids, abets, coun-sels or procures the commission of an offence by another person is taken to have committed that offence and is pun-ishable accordingly.’

5. As noted in s 11.2(2)(b) of the Criminal Code.

6. The act of state doctrine was defined by Fuller J in Underhill v Hernandez (1897) 168 US 250 at p 252: ‘Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of

another done within its own territory.’

7. Section 84(2)(j) provides: ‘The President is responsible for (j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.’

8. Section 1(d) of the Constitution provides: ‘The Republic of South Africa is one, sovereign, democratic state founded on the following values: (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.’

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(2) The High Court has in the past failed to pay due regard to the provisions of the Act and has awarded custody of minor girls to their husbands on the basis that the mar-riages were not voidable under ss 11 and 12 of the Hindu Marriage Act 1955 (Ravi Kumar v The State & Anr [2005 (124) DLT] and other domestic cases considered). However, these cases are pending for reconsideration before the Full Bench.

(3) Taking into account the provisions of the Act, the adverse effects of child marriage and the fact that the aforementioned cases are pending before the Full Bench, custody of C cannot be given to her husband at this stage. Instead: (a) C shall stay with her parents and not Y until she attains the age of 18, (b) Y shall not consummate the mar-riage and (c) when C does reach 18 it shall be her decision as to whether or not she proceeds with the marriage and if she chooses not to the marriage shall be treated as null and void.

for the petitioner: mr divya jyoti jaipuria for the respondents: mr pawan sharma, mr rajan chaudhary and mr sunil kumar

[2010] indlhc 2567

Full text of judgment at http://www.liiofindia.org/in/cases/dl/INDLHC/2010/2567.html

custody | parents living apart | equal time parenting order | practicability must be considered

MRR V GR high court australiafrench cj, gummow, hayne, kiefel and bell jj 3 mar 2010

M and G began living together in Sydney in 1993. They later married and had a daugh-ter in 2002. In January 2007 the family moved to Mount Isa, Queensland in order for G (the father) to gain work experience as a graduate engineer. The couple separated in August 2007 and M (the mother) took the child back to Sydney to live. In October 2007 G obtained interim court orders providing for the return of the child, so mother and daughter moved back to Mount Isa. M and G proceeded to share custody of the child on a week-to-week basis. While M wished to return to Sydney, G was determined to remain working in Mount Isa, regardless of whether M and his daughter left. In Mount Isa M had to live in a caravan park due to a lack of available accommodation, and there were limited opportunities for work so she survived on benefits and casual employment. M became depressed as a result of her situation and being far away from her family.

In April 2008 the Federal Magistrates Court (FMC) made parenting orders providing for M and G to have equal shared parental responsibility of the child and that she spend equal time with each of them. This was to be achieved by both parties continuing to live in

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Mount Isa, on the basis that G refused to leave and continuation of the arrangement was recommended by a family consultant. M’s appeal to the Full Court of the Family Court was dismissed in August 2008 and she thus proceeded to appeal to the High Court.

In allowing the appeal, setting aside the orders made by the Federal Magistrates Court and remitting the case to that court for reconsideration, it was held that:

(1) The Family Law Act 1975 (‘the Act’) lays down a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibil-ity for him or her (s 61DA). Where a parenting order does provide for equal shared parental responsibility, then under s 65DAA: (a) the court must consider making an order requiring that the child spend equal time with each parent, but can only make such an order if (i) it is in the child’s best interests and (ii) it is reasonably practicable; and (b) if an equal time order is not made, the court must consider making an order for the child to spend substantial and significant time with each parent, but again can only make such an order if (i) it is in the child’s best interests and (ii) it is reasonably practicable.

(2) Section 65DAA of the Act thus requires a court to consider two questions prior to making an equal time parenting order, i.e. (a) whether such an order is in the child’s best interests and (b) whether such an order is reasonably practicable. It is only if both questions are answered in the affirmative that an order can be made. The FMC considered only the first question and treated the answer as determinative, i.e. it made the order solely on the basis that it was in the child’s best interests and failed to consider whether it was reasonably practicable. The FMC thus erred in its approach.

(3) The FMC was obliged to consider the circumstances of each parent in determining whether an equal time parenting order was reasonably practicable. Given the evi-dence of M’s circumstances, equal time parenting in Mount Isa is clearly not reason-ably practicable. The FMC should therefore have rejected an equal time parenting order and proceeded to consider whether a substantial and significant time order should have been made, on the basis of the mother living in Sydney. Accordingly, the case should be remitted to the FMC and the correct approach adopted.

for the appellant: b w walker sc and l a r goodchild; instructed by neisha shepherd solicitor for the respondent: g k w page sc and t d betts; instructed by rod madsen

[2010] hca 4

Full text of judgment at http://www.austlii.edu.au/au/cases/cth/HCA/2010/4.html

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custody | relocation | maintaining contact with both parents | parental free-dom of movement must yield to child’s best interests

B V K court of appeal new zealandglazebrook, o’regan and arnold jj 25 mar 2010 This case concerned a relocation dispute involving divorced parents (B (father) and K (mother)) and their two children aged seven and five. B lived in New Zealand, having fled Algeria, escaped from an Australian detention centre and successfully claimed asy-lum. K’s family lived in Sydney and she had three children from a previous marriage in Australia. B and K married in an Islamic ceremony in 2002. At the time, B was already married to another woman, with whom he had one child. B and his first wife were unable to have more children and it was this that led to the second marriage. Following her mar-riage to B, K moved to New Zealand with her three children and set up residence near to the home of B, his first wife and their child. The first of B and K’s children (F) was born in 2003 and the second (S) in 2004. B and K separated prior to the birth of S. After the separation K returned to Sydney and thus S was born in Australia and lived there with K. F remained in New Zealand in the care of B and his first wife. B and K underwent an Islamic divorce in 2005. K visited F in 2004 and 2005, and returned to New Zealand in July 2006, along with the youngest child from her first marriage, to deal with the present court proceedings. In December 2006 S came to live with K in New Zealand and began having regular contact with B. K has lived in New Zealand ever since as the court proceed-ings have proven contentious and time-consuming. B wanted F and S (‘the children’) to remain in Auckland whilst K wanted to relocate them to Sydney. All parties agreed that the children should live together.

The Family Court refused K’s application to relocate the children to Australia, holding that the reasons against a move outweighed those in favour. The court ordered that the children remain in New Zealand and made shared parenting orders splitting custody between B and K. On appeal to the High Court, K was granted permission to relocate with the children, subject to conditions ensuring continued contact with B. The High Court considered that there was a risk of damage to the children should they remain in New Zealand because of the continued conflict between B and K, and that the long-term prospects for both children were better if they were to live in a secure extended family environment, free of conflict, in Australia. B appealed to the Court of Appeal.

In allowing the appeal, quashing the orders made by the High Court and ordering that the children remain in New Zealand, it was held that:

(1) Under s 4(1)1 of the Care of Children Act 2004 (COCA), a child’s welfare and best interests are the ‘first and paramount’ consideration in child care cases. Under s 4(5)(b) a court, in determining what best serves a child’s welfare and best interests, must take into account the principles specified in s 52 (though these are not exhaustive). A court should explicitly (a) consider each of the s 5 principles to determine whether or not they are relevant, and then (b) take account of each relevant principle in deter-mining what is in the child’s best interests (AD v KT [Parenting order] [2008] NZFLR

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761 at [15] considered). This assessment is highly individualised as it depends on the particular circumstances of the case. Nonetheless, the use of s 5 should promote con-sistency and transparency in judicial decision making.

(2) Parental conflict is relevant in this case. Conflict induced by one parent cannot be a basis for denying custody or other relief to the other parent (S v L [Relocation] [2008] NZFLR 237 at [48] considered), and what is important is not the existence of the con-flict itself but the potential effect it has on the children. It is important to note that: (a) direct exposure of children to verbal or physical conflict between parents is detri-mental, (b) high-conflict situations can affect parents’ parenting ability and impede cooperative outcomes, and (c) even where parental conflict exists it is desirable for children to maintain relationships with both parents. Whatever the outcome of this case, each parent has the responsibility to promote the best interests of the children by sheltering them from any parental hostility and accepting the decision of the court.

(3) In this case there are no issues regarding the children’s safety, both parents are capa-ble of providing adequate care and the children’s cultural identity will be maintained in both Australia and New Zealand. However, if the children move to Australia then their relationship with B will suffer significantly, as they will lose regular face-to-face contact and B’s circumstances mean that he is unlikely to visit. Although remaining in New Zealand will mean that the children lose contact with their extended family in Australia, parental relationships take priority in this context.

(4) There will be conflict between B and K wherever the children live. Although this will be worse in New Zealand, it is likely to improve over time and both parties will keep their children’s best interests in mind. However, K may face some difficulties in hav-ing to remain permanently in New Zealand without the support of her family, and this does have the potential to affect her parenting skills. In addition, freedom of movement is an important value in a mobile community (D v S [2002] NZFLR 116 considered). Nevertheless, a parent’s freedom of movement is relevant only within the overall con-text of a child’s best interests and, in this case, must yield to them. K will be able to overcome the difficulties she faces to promote her children’s best interests.

(5) The children are settled in their current regime and have or are developing links with both families, and the current shared parenting arrangements appear to be working. Consequently, the desirability of preserving continuity for the children supports the continuation of these arrangements. Overall, using the principles in s 5 COCA, the factors that favour relocation (K’s wishes and the possibility of parental conflict) are outweighed by those against it (particularly the need for the children to maintain a relationship with B and his family). Although both children support relocation and these views should be taken into account, they are outweighed by the contrary considerations. Therefore, the children should remain in New Zealand.

for the appellant: v a crawshaw and p l kannemeyer; instructed by draffin and snow law, auckland for the respondent: c r pidgeon qc; instructed by otene & ellis, auckland for the children: g harrison

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[2010] nzca 96 Full text of judgment at http://www.commonlii.org/nz/cases/NZCA/2010/96.pdf

parental contact | parents living apart | equal time parenting order | practica-bility must be considered | See children – MRR v GR

parental contact | relocation | parental freedom of movement must yield to child’s best interests | See children – B v K

residence order | welfare was paramount consideration

IN RE B (A CHILD)

supreme court united kingdomlord hope, lady hale, lord collins, 19 nov 2009lord kerr and lord clarke In December 2005 B was born to RJB (father) and GLB (mother), though the parents had separated in April 2005. GB (B’s maternal grandmother) had been B’s primary carer since birth and B had lived with her during this time. Neither RJB nor GLB was capable of offering satisfactory care to B in his early years. GLB lived intermittently with B and GB until July 2006 when she left GB’s home. In November 2006, GB was granted a residence order by consent and both GLB and RJB have regular contact with B. In 2007 RJB married SB and they began living together with their baby daughter and SB’s child from a previous relationship.

In May 2008 GLB applied to the Family Proceedings Court (FPC) for a residence order for B. In the same proceedings, RJB also applied for a residence order. Despite her own application, GLB also supported the application of RJB. A local authority report recom-mended that, although RJB was capable of caring for B, B should continue to reside with GB as moving him would be disruptive. In March 2009 the FPC held that residence of B should continue with GB. RJB appealed to the High Court in April 2009 and the appeal was allowed, with the High Court ordering a transfer of residence to RJB. GB appealed to the Court of Appeal but her appeal was dismissed and leave to appeal to the House of Lords refused. A stay on the transfer of residence was granted to allow GB to petition the House of Lords for permission to appeal, but on the condition that B should reside with his father from Thursday afternoon to Monday afternoon each week. Permission to appeal was granted in June 2009 and GB subsequently appealed to the Supreme Court.

In allowing the appeal and returning residence of B to GB, it was held that:

(1) In determining the question of a child’s residence, the child’s welfare is the para-mount consideration. The question of parenthood is an important factor to be taken into account in assessing what is best for the child’s welfare, but it is not in itself a

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decisive factor. Parents do not have the right to raise their biological children nor do children have the right to be raised by their biological parents (In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43 applied).

(2) The decision of the FPC was not ‘plainly wrong’ as concluded by the High Court and Court of Appeal; rather, the FPC carefully weighed the factors relevant to B’s best interests, recognising that his welfare was the paramount concern. Consequently, the High Court and Court of Appeal erred in overturning the FPC’s decision.

(3) The High Court and Court of Appeal misinterpreted In re G (above) and as a result gave too much weight to the question of parenthood in deciding on B’s residence. Whilst Lord Nicholls in In re G did suggest that a child’s welfare is normally best served by being raised by his or her biological parents, his comments were qualified to suggest that this is not always the case. Disputes about residence and contact often involve unusual situations which may well necessitate a departure from the norm in order to protect the child’s best interests.

(4) B has lived for virtually his whole life with GB and he has a strong bond with her. There is evidence to suggest that breaking this bond would have a disruptive effect on B’s life. RJB is capable of meeting B’s needs but his family situation was untested at the time of the FPC’s decision. Therefore there was ample basis on which the FPC could conclude that B’s welfare was best served by remaining with GB. Consequently, such a conclusion lay firmly within the range of decisions reasonably open to the FPC and thus its decision should not have been overturned.

(5) The radical change to B’s living arrangements ordered by the Court of Appeal as a condition of stay, i.e. that B should reside with RJB from Thursday afternoon to Monday afternoon, has confirmed that transfer of residence to RJB would cause con-siderable disruption to B’s life. As a general rule, conditions such as these should not be ordered where a party seeks permission to appeal a residence decision.

for the appellant (gb): alison ball qc and peter horrocks; instructed by powleys for the respondent (rjb): pamela scriven qc and cherie parnell; instructed by allan rutherford solicitors for the respondent (glb): in person

[2009] uksc 5; [2009] 1 wlr 2496; [2010] 1 all er 223; [2010] 1 flr 551; [2010] 1 fcr 1; [2010] fam law 143

Full text of judgment at http://www.bailii.org/uk/cases/UKSC/2009/5.html

1. Section 4(1) provides: ‘The welfare and best interests of the child must be the first and paramount consideration— (a) in the administration and application of this Act, for example, in proceedings under this Act; and (b) in any other proceed-ings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.’

2. Section 5 provides: ‘The principles referred to in section 4(5)(b) are as follows: (a) the child’s parents and guard-

ians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing; (b) there should be continuity in arrangements for the child’s care, develop-ment, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have con-tinuing relationships with both of his or her parents); (c) the child’s care, development, and upbringing should be facili-

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children | cruel, inhuman or degrading treatment

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Cruel, inhuman or degrading treatment abuse during detention | claims not disputed | damages awarded

WEHEIRE V ATTORNEY-GENERAL high court (nairobi) kenyaokwengu and dulu jj 8 apr 2010

On 2 December 1986 W was arrested, without a warrant, on suspicion of taking an illegal oath and failure to prevent a felony. His house was searched and he was detained at Jogoo Road police station. He was subsequently blindfolded and locked up for 16 days at Nyayo House basement (not an official police station), during which time he was interrogated while naked, hungry, thirsty and/or sleep-deprived; assaulted by special branch officers both with and without weapons; placed naked in water-logged cells; and threatened with death and forced to confess to the charges levelled against him. On 17 December 1986 W appeared unrepresented before the chief magistrate and pled guilty to both charges. The chief magistrate did not exclude the officers who had tortured W from the courtroom and did not enquire about W’s 16-day incarceration at Nyayo House. W was sentenced to four years imprisonment for the illegal oath offence and 18 months for the failure to prevent a felony. W’s appeal to the High Court was summarily rejected. In prison W suffered men-tally and psychologically and was subjected to hard labour which aggravated his suffering. W was released from prison on 17 August 1989.1

On 6 October 2003 W brought an action against the State, seeking (a) a declaration that his constitutional rights had been breached and (b) damages, including general, special and exemplary damages. The relevant constitutional provisions are ss 70,2 72(1)(a),(3)&(5),3 74(1),4 76,5 77(1)&(2),6 80(1)7 and 82(3).8 W also urged the court to consider awarding moral damages arising from gross violation of international human rights law and international humanitarian law by the Government and its agents. W contended that, as a result of his arrest and detention, he had suffered physical and psychological trauma, lost his job and had his reputation ruined (with the result that he was unable to gain further employ-ment). W rejected AG’s argument that his claim was time barred, arguing that a claim for breach of constitutional rights is not subject to the limits in place for tortious claims.

AG’s defence was based on the following arguments: (a) that W’s complaints were tor-

tated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of providing day-to-day care for, or enti-tled to have contact with, the child; (d) relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing; (e) the child’s

safety must be protected and, in particular, he or she must be protected from all forms of violence as defined in section 3(2) to (5) of the Domestic Violence Act 1995 (whether by members of his or her family, family group, whānau, hapu, or iwi, or by other persons); (f) the child’s identity (includ-ing, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.’

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cruel, inhuman or degrading treatment

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tious in nature and were thus time barred under s 3 Public Authorities Limitations Act (Cap.39) (PALA) as they were not brought within 12 months; (b) that W had failed to dis-close certain material facts (such as the identities of the police officers who tortured him) with the result that AG could not properly respond to the allegations; (c) that W’s claim should be defeated on grounds of inordinate delay and acquiescence, because (i) he did not bring the claim for 17 years, (ii) he failed to raise the alleged constitutional breaches in both the trial and appeal courts, and (iii) he appealed the magistrate’s decision rather than challenging the constitutionality of the proceedings; (d) that W’s claim could be adequately adjudicated upon by the Truth, Justice and Reconciliation Commission; and (e) that W had failed to establish to the required standard the unlawful violation of his fundamental rights.

In finding that some of W’s fundamental rights were violated, and that he was therefore entitled to damages, it was held that:

(1) W’s proceedings have been brought under s 84 of the Constitution. There is nothing in s 84 or the relevant rules of procedure providing for a limitation period applicable to actions to enforce fundamental rights. The provisions of PALA limiting the period for initiating actions against public authorities are inconsistent with the Constitution to the extent that they limit a party’s right to seek redress for contravention of his constitutional rights. PALA cannot override the Constitution and thus W’s claim is not statute barred (Lt. Col Peter Ngari Kagume & Ors v Attorney-General Constitutional Application No. 128 of 2006 considered).

(2) Order XXXVI Rules 9 and 10(1) of the Civil Procedure Rules provides that the suf-ficiency or otherwise of facts set out in the summons and supporting affidavits is a preliminary issue. AG did not complain about the correctness or sufficiency of facts, or seek the direction of the court in this regard, on any of the several previous occa-sions that the parties have appeared in court, making it too late for AG to complain about this issue at this hearing. Additionally, even though W did not state the names of the arresting police officers, he has given sufficient evidence to enable AG to iden-tify the officers in question. The facts disclosed in W’s affidavit provide a sufficient base for his claim relating to infringement of his constitutional rights (Matiba v The Attorney General Misc. Application No. 666 of 1990 considered).

(3) Although W could have raised the issue of the contravention of his fundamental rights before the trial magistrate, this was not mandatory and his failure to do so should not bar his claim. Regarding the 17-year delay, W’s explanation that he was confined in prison until August 1989 and that upon his release he had to wait until 2002 (when elections were held and there was a change in the government) to lodge a complaint is not unreasonable. W’s claim should not be defeated because of this delay (Dominic Arony Amolo v the Attorney General HC. Misc. Application No. 494 of 2003 applied).

(4) There is no basis for the argument that W’s claim should be referred to the Truth, Justice and Reconciliation Commission. No evidence has been presented detailing any obstacle to this court hearing the claim and, further, the High Court has power to deal with alleged violations of constitutional rights and is also under a responsibility to uphold the Constitution.

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(5) W’s right to personal liberty under s 72 of the Constitution was violated when he was held at Nyayo House for more than 24 hours contrary to s 72(3)(b). In addition, there is no reason to doubt W’s claims regarding his torture, as AG has not attempted to deny the claims. The acts W complains of at Nyayo House basement all amount to cruel and degrading treatment in violation of s 74(1) of the Constitution.

(6) The search of W’s house was not unlawful as it was related to the criminal charge for which W was later tried. The right to protection against arbitrary search or entry as provided by s 76(1) of the Constitution is not absolute but is subject to s 76(2), which allows such a search in the interests of defence, public safety, public order or maintenance of public security.

(7) W’s constitutional rights to a fair trial under s 77 of the Constitution were not con-travened during the trial before the Chief Magistrate’s Court or in the High Court during his criminal appeal. The chief magistrate had no way of knowing that W was not a free agent or that he had been forced to plead guilty; the only way he could have known this would have been through W revealing the information, which he failed to do. W relinquished his rights by pleading guilty and further acquiesced by appealing from the initial decision rather than challenging the constitutionality of the proceed-ings. W’s subsequent confinement in prison was lawful and did not contravene his rights, as he was held pursuant to conviction following criminal trial in accordance with s 72(1)(a) of the Constitution.

(8) There is no evidence to support W’s claims that his rights to freedom of assembly and association under s 80(1) and protection from discrimination under s 82(3) of the Constitution were violated.

(9) An award of damages will ensure appropriate redress for the violation of W’s funda-mental rights at the hands of the officers of the government. An appropriate award is Kshs.2.5 million of general damages. W has not specifically pled or proved any special damages and exemplary or aggravated damages should not be awarded in light of the change in government and attempts at dealing with human rights viola-tions (Dr. Odhiamdo Olel v the Attorney General HCCC (Kisumu) No. 366 of 1995 distinguished, Dominic Arony Amolo v The Attorney General (above) and other similar cases considered).

for the defendant: mr obwayo

[2010] eklr; miscellaneous civil case 1184 of 2003

Full text of judgment at http://kenyalaw.org/Downloads_FreeCases/72867.pdf

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complicity in ill-treatment by foreign officials | act of state doctrine | inappli-cable to grave breaches of human rights | See accountability & impunity – Habib v

Commonwealth of Australia

interrogation methods | brain mapping, narcoanalysis and polygraph testing | involuntary use unjustified | See fair hearing – Selvi & Ors v State of Karnataka & Anor

1. These facts were drawn from the affidavit sworn by W. AG did not deny the facts and thus the court assumed their truth.

2. Section 70 provides: ‘Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the indi-vidual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely - (a) life, liberty, secu-rity of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and associa-tion; and (c) protection for the privacy of his home and other property and from deprivation of property without com-pensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.’

3. Section 72(1)(a),(3)&(5) provides: ‘(1) No person shall be deprived of his personal liberty save as may be author-ized by law in any of the following cases - (a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offence of which he has been convicted. […] (3) A person who is arrested or detained - (a) for the purpose of bring-ing him before a court in execution of the order of a court; or (b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or [being] about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with. […] (5) If a person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.’

4. Section 74(1) provides: ‘No person shall be subject to torture or to inhuman or degrading punishment or other treatment.’

5. Section 76 provides: ‘(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section

to the extent that the law in question makes provision - (a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or the development or utilization of any other property in such a manner as to promote the public benefit; (b) that is reasonably required for the purpose of promoting the rights or freedoms of other persons; (c) that authorizes an officer or agent of the Government of Kenya, or of a local government authority, or of a body corporate established by law for public purposes, to enter on the premises of a person in order to inspect those premises or anything thereon for the purpose of a tax, rate or due or in order to carry out work con-nected with property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the case may be; or (d) that authorizes, for the purpose of enforcing the judgment or order of a court in civil proceed-ings, the entry upon premises by order of a court, and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably jus-tifiable in a democratic society.’

6. Section 77(1)&(2) provides: ‘(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. (2) Every person who is charged with a criminal offence - (a) shall be presumed to be innocent until he is proved or has pleaded guilty; (b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged; (c) shall be given adequate time and facilities for the prepara-tion of his defence; (d) shall be permitted to defend himself before the court in person or by a legal representative of his own choice; (e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attend-ance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and (f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.’

7. Section 80(1) provides: ‘Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assem-ble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.’

8. Section 82(3) provides: ‘In this section the expression “discriminatory” means affording different treatment to dif-ferent persons attributable wholly or mainly to their respec-tive descriptions by race, tribe, place of origin or residence

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Dignity body search | prison officer | suspected theft | grounds and execution appropriate | See private life – Officer Commanding Correctional Services – Mokhotlong & Anor v Selepe

Disability care | refusal to pay family members was discrimination based on family status

ATKINSON & ORS V MINISTRY OF HEALTH human rights review tribunal new zealandjudge ryan, dr mckean and mr solomon 8 jan 2010

A (one of a number of disabled persons and family members of disabled persons suing in this action) brought proceedings against MoH alleging that the practice and/or policy of MoH of refusing to allow family members of disabled persons entitled to receive care services to provide such care services for payment on the basis of their family relationship (‘the Policy’) was in breach of Part 1A of the Human Rights Act 1993 (HRA) on the basis of ss 20L1 and 21(1)(l)2 (particularly s 21(1)(l)(iv)). A argued that the Policy was inconsistent with s 193 of the New Zealand Bill of Rights Act 1990 (NZBORA), in that the Policy unlawfully discriminated on the grounds of family status, and that the discrimination could not be justified under s 54 NZBORA.

A contended that the Policy unlawfully discriminated against willing care providers and that family members often provided better and more culturally sensitive support than external service providers. In addition, A argued that the effect of the Policy was to deny disabled persons the opportunity to choose to have family members, rather than external service providers, provide care for them.

MoH argued that it was not the role of the state to pay families to provide ‘natural support’, which it was the duty of families to provide under the social contract between families and the state. Furthermore, MoH argued that there were a number of other rationales for the Policy, including the promotion of equality of outcomes for disabled persons, encouraging the independence of disabled persons, the avoidance of professionalising or commercialising family relationships and fiscal sustainability.

In finding in favour of A and making a declaration pursuant to s 921(3) of the HRA that the Policy was inconsistent with s 19 of the NZBORA and therefore in breach of Part 1A of the HRA, it was held that:

or other local connexion, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another

such description are not made subject or are accorded privi-leges or advantages which are not accorded to persons of another such description.’

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(1) The tribunal has jurisdiction to inquire whether a particular act or omission of the Government is consistent with the HRA and the NZBORA (R v Hansen [2007] 3 NZLR 1 applied). In enquiring whether a limit on a right or freedom is justified under s 5 NZBORA, the function of the tribunal is not to substitute its own view with that of the legislature but, if the tribunal determines that a limit is not justified, to consider whether the legislature was entitled to come to the conclusion under applicable law that the right or freedom should be so limited (Child Poverty Action Group Incorporated v Attorney-General [2008] NZHRRT 31 applied).

(2) The relevant two-stage test to be applied in discrimination cases is: (a) is there discrimination prohibited under s 19 NZBORA (being a distinction based on a prohibited ground and a disadvantage, assessed on the basis of the appropriate comparator group(s)), in relation to which the burden of proof lies with the plaintiff; and (b) if there is such discrimination, is it a justified limitation under s 5 NZBORA, in relation to which the burden of proof lies with the defendant.

(3) In assessing whether there is discrimination prohibited under s 19 NZBORA, the appropriate groups to be compared are (a) family members providing care services to a related disabled person and (b) any other person able and willing to provide care services to the same disabled person (McAlister v Air New Zealand Ltd [2009] NZSC 78 considered). There is no need to draw fine distinctions when selecting a comparator group (Child Poverty Action Group Incorporated (above) considered).

(4) As the care services performed by the paid service providers and those by family members were similar, if not identical, the distinction in treatment between the two groups is family status, which is a prohibited ground of discrimination under s 21(1)(l)(iv) HRA (McAlister v Air New Zealand Ltd (above) considered). Family members providing care to disabled relatives are disadvantaged because they are not allowed to be paid for this care, whilst other service providers may be paid for providing the same care. Disabled persons themselves are disadvantaged because of the lack of choice over care giver. Therefore, there is a prima facie case of discrimination under s 19 NZBORA.

(5) Under s 5 NZBORA, a justified limitation is one which is (a) prescribed by law and (b) capable of being demonstrably justified in a free and democratic society. There does not appear to be any clear legislation prescribing the Policy but the tribunal does not make any decision on whether the Policy is or is not prescribed by law.

(6) In relation to the second limb of s 5, the Policy must (a) serve a purpose sufficiently important to justify curtailment of the right to be free from discrimination due to family status, (b) be rationally connected with its purpose, (c) impair the right to be free from discrimination due to family status no more than is necessary for sufficient achievement of its purpose, and (d) be in due proportion to the importance of its objective (R v Hansen (above) and Child Poverty Action Group Incorporated (above) applied).

(7) The Policy does not serve a purpose sufficiently important to justify curtailment of the right to be free from discrimination due to family status, as there is no clear evidence of a social contract justifying the Policy and the other purposes argued by MoH are

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also not sufficiently important to justify curtailment.

(8) The Policy is not rationally connected to its purpose, on the basis that the Policy irrationally characterises the support required by a moderately to heavily disabled person as ‘natural support’, whereas in fact it is actually ‘disability support’ and therefore could be funded by MoH. The other arguments advanced by MoH as to why the Policy is justified are also not rationally connected to the purpose. Commercial arrangements within family relations already exist in many different contexts and to deny them to a family because of disability would be discriminatory; the evidence submitted indicates that paying family members for providing care services would have limited financial implications; and there is no evidence to indicate that care by family members results in different outcomes for disabled persons.

(9) As the purpose of the Policy is to discriminate between family members providing care and paid service providers without a rational basis, the purpose is not one which ought to be achieved and therefore cannot be necessary or in due proportion. The payment policy under the Accident Compensation Corporation for provision of care services to persons whose disabilities were caused by injury does not distinguish between family members and external service providers and there seems to be no rationale for a difference in policy based solely on the cause of the disability.

(10) Although some of the stated objectives of the Policy (such as the promotion of independence for disabled persons and fiscal sustainability) are important, the Policy is not reasonably necessary or the only way of achieving those objectives and is not a justified limitation of the right to be free from discrimination due to family status.

for the plaintiffs: mr r hesketh, ms f joychild and mr d peirse for the defendant: ms m coleman, ms v casey and ms m silverwood

[2010] nzhrrt 1

Full text of judgment at http://www.commonlii.org/nz/cases/NZHRRT/2010/1.html

discrimination | political participation | elections | voting | accessibility of polling stations inadequate

HUGHES & ANOR V ELECTIONS CANADA canadian human rights tribunal canadagarfield 12 feb 2010 H, a sufferer of post-polio syndrome and user of a walker, alleged that he was denied an accessible polling location and adversely differentiated against on account of his disabil-ity when voting in two federal elections. On 17 March 2008, H went to vote in St Basil’s

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Church, Toronto but found that none of the three entrances to the church was accessible to a person with his disability. H was able to enter the church with assistance and was eventually able to vote, but he found the experience difficult and degrading. On the day of the election H made a verbal complaint to an EC official (EC being the agency responsible for the administration of federal elections in Canada) and he later followed this up with a written complaint. After receiving no substantive response from EC, H filed a complaint with the Canadian Human Rights Commission (‘the Commission’) on 5 June 2008. On 14 October 2008 H voted again at St Basil’s Church. He experienced the same problem of accessibility as on 17 March and it was clear that EC had not followed up his complaint. Although his case was already pending with the Commission, these proceedings dealt with both incidents. The Commission referred H’s case to the tribunal on 29 December 2008. H alleged that EC violated ss 5(a) and 5(b)5 of the Canadian Human Rights Act R.S.C. 1985 (CHRA). EC admitted liability under s 5(b) CHRA but denied that it was liable under s 5(a).

In finding that EC infringed both subsections of CHRA, it was held that:

(1) ‘The right to vote is protected in the Canadian Charter of Rights and Freedoms: sec-tion 3.6 […] It is the legal duty of the State to ensure that all barriers, whenever pos-sible, are removed so that citizens may vote. Nowhere is this more significant than for people with disabilities.’

(2) In providing the means by which the public may exercise its democratic franchise, EC provides a public service and facility for the purpose of s 5 CHRA (Watkin v Canada (Attorney General) 2008 FCA 170 applied). EC does not merely provide a physical space for individuals to vote in; the service includes providing public information, barrier-free voting locations and polling stations, polite interaction of its officials with voters, and the facilitation of accessible voting for all, including voters with disabilities.

(3) The only substantive communication from EC in respect of H’s complaints was a let-ter from EC to the Commission which was dismissive and contained several factual inaccuracies, suggesting that EC’s investigation into H’s complaints was flawed. EC did not even record the verbal complaint made by H on the 17 March 2008.

(4) Both section 5(a) and 5(b) were violated by EC in this case. EC denied H barrier-free access to voting in both elections as there were no entrances accessible to a person with H’s disability. EC denied H a service and adversely differentiated against him due to its sub-standard investigation into his complaints.

(5) The fact that H was eventually able to vote does not absolve EC from liability under s 5(a). H had to be assisted in and out of the church in order to vote, showing that EC effectively denied him access to the polling station.

(6) H should be awarded $10,000 in damages (under paragraph 53(2)(e) CHRA), the fol-lowing points being relevant to that decision:

(a) Voting is one of the most sacred rights of citizenship and that includes the right to vote in an accessible context;

(b) The violation of H’s rights occurred in two separate elections within a 7-month time period; and

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(c) EC also infringed H’s right to a competent and prompt investigation and han-dling of his verbal and written complaints.

(7) In addition to compensation, a number of other orders should be made. EC must:

(a) Formulate a plan for greater consultation with voters with disabilities;

(b) Stop situating polling stations in locations without barrier-free access in any elec-toral district in Canada, subject to applicable statutory exceptions;

(c) Implement a procedure enabling verification of the accessibility of polling facili-ties on the day of an electoral event;

(d) Review certain of its policies and procedures relating to accessible facilities;

(e) Revise its standard lease for polling locations to include a requirement that prem-ises provide level access and are barrier-free;

(f) Provide sufficient and appropriate signs at elections so that voters with disabili-ties can easily find access to polling stations;

(g) Review, revise and update its training on accessibility issues for electoral officials;

(h) Implement a procedure for dealing with verbal and written complaints about lack of accessibility, and ensure this is suitably publicised.

Observations

The CHRA is a quasi-constitutional document and any exemptions from its provisions must be clearly stated (Canada (House of Commons) v Vaid [2005] 1 SCR 667 applied).

for the complainant: kate a hughes and janet borowy for the respondent: andrew lokan and maya bhusari for the interested party, council of canadians with disabilities: ivana petricone, kerri joffe and amy spady

2010 chrt 4

Full text of judgment at http://www.chrt-tcdp.gc.ca/search/files/t1373_10308e120210.pdf

discrimination | work | teacher with cerebral palsy | removal from post unjustified

SYED BASHIR-UD-DIN QADRI V NAZIR AHMED SHAH & ORS supreme court indiaaltamas kabir j 10 mar 2010

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Q, a sufferer of cerebral palsy, applied for one of three positions of ‘Rehbar-e-Taleem’ (lit-erally translated as ‘Teaching Guide’) in Kanjinag School, State of Jammu and Kashmir. In January 2005 a ‘merit list’ of four candidates was drawn up and in February 2005 the names of three of these individuals were published by the Chief Education Officer, with an invitation to object to their proposed appointment to the posts. Q was placed first in this list. S, who was the only individual on the merit list not selected for a post, objected to Q’s appointment on the grounds that his physical disability made him unfit for the role. In April 2005, Q applied to the High Court for an order requiring the State of Jammu and Kashmir (‘the State’) to issue him with an appointment letter, as it had not yet done so. Whilst this application was pending, the State Government issued a Gazette Notification in October 2005, providing for 3% reservation of appointments in government jobs for physically challenged candidates, in order to comply with s 227 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1998 (‘the Disabilities Act’). Under the Disabilities Act, 1% of jobs must be reserved for persons suffering from locomotor disability or cerebral palsy in the posts identified for each disability.

Q’s application was disposed of in August 2006, with the High Court ordering that can-didates should only be appointed if they were physically fit for the job and that the State should consider absorbing Q under the quota of handicapped persons. Consequently, the Director of School Education in Kashmir (DSE) constituted a committee of various education officials to determine whether Q should be Rehbar-e-Taleem. In November 2006 the committee reported that though Q could read and talk well, he was unable to write, but that nonetheless he should be given a chance. Q was therefore appointed as Rehbar-e-Taleem.

In February 2007, S applied to the High Court calling for the findings of the commit-tee and the order for the appointment of Q to be quashed, and for him to be appointed instead. The High Court ordered that Q be examined by a neurologist, who found that his condition would make his teaching duties difficult. Subsequently DSE constituted a further committee in July 2007 to assess Q’s teaching performance, which concluded that Q performed his duties satisfactorily. However, in September 2007, the High Court quashed Q’s appointment and ordered DSE to find him a suitable alternative job. Q appealed to the Division Bench of the High Court but his appeal was dismissed, despite a certificate from the Head Master of Kanjinag School stating that he had satisfactorily com-pleted one year in the role and achieved good exam results. DSE subsequently informed the High Court of two alternative posts, namely Library Bearer and Laboratory Assistant, and Q was disengaged from the post of Rehbar-e-Taleem. Q appealed to the Supreme Court, arguing that the State’s actions contravened s 22 of the Disabilities Act.

In allowing the appeal, ordering that the High Court ruling be set aside and Q be rein-stated to his role as Rehbar-e-Taleem, it was held that:

(1) The object of the Disabilities Act is to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to persons with disabilities. Section 22 of the Act requires the Government and local authorities to formulate schemes for ensuring the employment of persons with disabilities, including cerebral palsy. Section 31 envisages the provision of aids and appliances to persons with disabilities. Although

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Q cannot write on a blackboard, electronic aids could eliminate the need for this.

(2) Naturally, a person with cerebral palsy will suffer from jerky movements and impaired speech, but despite this the Government has made it clear that 1% of vacancies should be reserved for such persons. As long as an individual can discharge his teaching duties efficiently and without prejudice to students, there is no reason that he cannot be a teacher. Accordingly, there was no reason for Q’s position as Rehbar-e-Taleem to be terminated, as his performance, appearance and demeanour were all assessed as satisfactory, his students had no difficulty in understanding him and he achieved good exam results. Indeed, ‘[Q’s] tenure as a Rehbar-e-Taleem ought to have been continued without being pitch-forked into a controversy which was uncalled for’.

(3) Given Q’s good performance and the clear and unambiguous object of the Disabilities Act, the High Court erred in ordering his disengagement. Indeed, the High Court did not even refer to the Disabilities Act and consequently reached a conclusion that is incompatible with its provisions, particularly the s 22 requirement that a certain percentage of vacancies be filled with disabled candidates. Furthermore, the High Court acted insensitively in calling Q to appear before it and respond to questions, given that Q’s speech disability must have worsened on account of nervousness in such a situation. Consequently, Q’s appeal must succeed and the order of the High Court must be set aside. Q must be allowed to resume his post as Rehbar-e-Taleem immediately upon communication of this order, with continuity of service preserved so that the period between disengagement and reengagement shall not be treated as a break in service and Q shall be entitled to all relevant benefits for the said period.

for the appellant: colin gonsalves for the first respondent: vijay hansaria for the second respondent: anis suhrawardy

[2010] insc 184

Full text of judgment at http://www.liiofindia.org/in/cases/cen/INSC/2010/184.html

limited psychological and social development | sentencing | imprisonment was inappropriate | See liberty & security – Excell v New Zealand Police

1. Section 20L provides: ‘(1) An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990. (2) For the purposes of subsection (1), an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission— (a) limits the right to freedom from discrimination affirmed by that section; and (b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justi-fied limitation on that right. (3) To avoid doubt, subsections (1) and (2) apply in relation to an act or omission even if it is

authorised or required by an enactment.’

2. Section 21(1)(l) provides: ‘For the purposes of this Act, the prohibited grounds of discrimination are— (l) family status, which means— (i) Having the responsibility for the part-time care or full-time care of children or other depend-ants; or (ii) Having no responsibility for the care of children or other dependants; or (iii) Being married to, or being in a civil union or de facto relationship with a particular person; or (iv) Being a relative of a particular person.’

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Education admissions | school | decision based on jewish descent was racially discrimina-

tory | See equality – R (on the application of E) v Governing Body of JFS & Ors

Equality direct discrimination | married women | regulations allowing termination of employment afterwards constitutional | See equality – Johnson and Balwant v The Attorney General

of Trinidad and Tobago

discrimination | disability | cerebral palsy | removal from post unjustified | See disability – Syed Bashir-ud-din Qadri v Nazir Ahmed Shah & Ors

discrimination | disability | political participation | elections | voting | accessi-bility of polling stations inadequate | See disability – Hughes & Anor v Elections Canada

discrimination | family status | care | refusal to pay family members unjustified | See disability – Atkinson & Ors v Ministry of Health

discrimination | race | school admissions | policy based on jewish descent

involved ethnicity

R (ON THE APPLICATION OF E) V GOVERNING BODY OF JFS & ORS supreme court united kingdomlord phillips, lord hope, lord rodger, 16 dec 2009lord walker, lady hale, lord brown,lord mance, lord kerr and lord clarke

3. Section 19 provides: ‘(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. (2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.’

4. Section 5 provides: ‘Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

5. Section 5 provides: ‘It is a discriminatory practice in the provision of goods, services, facilities or accommodation cus-tomarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.’

6. Section 3 provides: ‘Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.’

7. Section 22 provides: ‘The Government shall appoint in every establishment such percentage of vacancies not has [Editor’s note: the use of ‘has’ here is possibly an error for ‘less’ in the online text] than three percent, for persons or class of persons with disabilities of which one percent each shall be reserved for persons suffering from:— (i) blind-ness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities. Provided that the Government may, having regard to the type of work carried on in any department or establishment by notification, subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.’

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JFS (formerly the Jewish Free School), a secondary school maintained by the London Borough of Brent, refused admission to M (child of E) on the basis that M did not meet the admissions criteria applied by JFS. Under these criteria, unless the school was undersubscribed, JFS would only admit children who either (a) were recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregations of the Commonwealth (the ‘OCR’) or (b) had converted to Judaism under approval of the OCR. In order to fall within category (a), a child’s mother had to be a Jew at the time of his/her birth and a mother would only be so regarded if she had either (i) been born to a Jewish mother or (ii) converted to Judaism in a manner that satisfied the requirements of the Orthodox religion. M’s mother was Italian by birth and had converted to Judaism under a non-Orthodox synagogue, with the result that M did not satisfy JFS’s admission requirements and so was refused admission to the school. E appealed to the JFS Admission Appeals Panel (the ‘Appeals Panel’) and the Schools Adjudicator against the decision to refuse M admission. The Appeals Panel held that a challenge to the admissions criteria was outside its remit and the Schools Adjudicator upheld the validity of JFS’s oversubscription policy. E commenced judicial review proceedings against each of JFS, the Appeals Panel and the Schools Adjudicator on the grounds that JFS’s admissions policy amounted to direct discrimination on the grounds of race under s 1(1)(a)1 of the Race Relations Act 1976 (‘the Act’), indirect discrimination under s 1(1A)2 of the Act, and/or that it was contrary to JFS’s obligations to promote racial equality and to have due regard to the need to eliminate unlawful racial discrimination under s 713 of the Act.

The High Court dismissed E’s claims for judicial review in relation to direct discrimination on racial grounds on the basis that the admissions policy was based on religion and not race. E’s claim on the basis of indirect discrimination was also dismissed on the basis that the policy giving preference to children who were Jewish by reference to Orthodox Jewish principles was a proportionate means of achieving a legitimate aim. The High Court did, however, accept E’s claim that the governing body of JFS was in breach of its duty under s 71 of the Act and made a declaration to that effect, but held that this would not have led to any difference in the crucial part of the admissions policy.

The Court of Appeal allowed E’s appeal against the High Court decision in relation to the issues of direct and indirect discrimination, finding that the decision not to admit M had been made on racial grounds notwithstanding their theological motivation. JFS appealed to the Supreme Court against this decision.

In dismissing the appeal in relation to direct discrimination (Lord Hope, Lord Rodger, Lord Walker and Lord Brown dissenting) and in relation to indirect discrimination (Lord Rodger and Lord Brown dissenting), it was held that:

(1) It is common ground between the parties that JFS discriminated against M in relation to its terms of admission to the school. However, the question of whether this amounts to unlawful direct discrimination depends on (a) the grounds upon which M was refused entry and (b) whether those were grounds were racial.

(2) Section 34 of the Act defines racial grounds as including ethnic or national origins; therefore racial discrimination includes discrimination on ethnic grounds. A finding that a person was treated less favourably on religious grounds does not exclude the possibility that he was treated that way on racial grounds also.

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(3) The question of whether discrimination is on ethnic grounds depends on whether the discrimination is based on descent which traces racial or ethnic origin. The criterion applied by JFS based on matrilineal descent is not simply religious but embraces racial and ethnic origins. It is a test which Orthodox Judaism uses to identify those regarded today as descendants of a particular people, enlarged from time to time by the assimilation of converts.

(4) Although Mandla v Dowell Lee [1983] 2 AC 548 sets out a means of identifying an ethnic group, the fact that the group identified by this test is broader than the group being discriminated against does not mean there is no discrimination on ethnic grounds.

(5) Whether there has been discrimination on the grounds of race depends on whether race was the criterion applied as the basis for discrimination, i.e. the factual criterion which determined the decision made by the alleged discriminator. The motive for discriminating according to that criterion is not relevant (R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751 applied, and Nagarajan v London Regional Transport [2000] 1 AC 501 considered). Therefore, the fact that JFS was motivated to apply the discriminatory test to comply with religious law rather than by ethnicity is irrelevant.

(6) M was not refused entry to JFS because of his religious beliefs: children who did not practise Judaism at all could be admitted if they satisfied the matrilineal test. M was refused entry to JFS because of his lack of descent from a particular ethnic group. This was therefore unlawful discrimination on racial grounds under s 1(1) of the Act, albeit for benign religious motives.

(7) Direct and indirect discrimination are mutually exclusive under the Act. On the basis that this was a case of direct discrimination under s 1(1) of the Act, the issue of indirect discrimination under s 1(1A) of the Act does not arise.

Per Lord Mance, Lord Kerr, Lord Clarke, Lord Hope and Lord Walker (Lord Rodger and Lord Brown dissenting):

(1) If there is no direct discrimination, it is necessary to consider whether M’s ethnic origins put him at a disadvantage in order to determine if there is indirect discrimination under s 1(1A) of the Act. M’s mother’s non-Jewish Italian birth meant that M was at a disadvantage compared with persons recognised as Orthodox Jews by JFS because of his ethnic origins.

(2) It is then necessary to consider if the disadvantage at which M was put was a proportionate means of achieving a legitimate end.

(3) JFS had a legitimate aim of encouraging and assisting children it regarded as Jews to be educated about Orthodox Judaism whether or not they were practising the religion.

(4) However, in seeking to achieve this aim, JFS failed to consider the unhappiness the admissions policy may create between different Jewish denominations, intra-community relations, or on the surrounding communities. There was no evidence that the desire to pursue the school’s aim had been weighed against the seriousness of the detriment to the disadvantaged group (R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 applied).

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(5) The admissions policy therefore discriminated against M in a way which was not justified under s 1(1A) of the Act and was, therefore, unlawful indirect discrimination.

Per Lord Hope, Lord Rodger, Lord Walker and Lord Brown (dissenting):

(1) The issue is not simply whether M is a member of a separate ethnic group, but whether M was being treated differently on grounds of that ethnicity.

(2) Consideration of the alleged discriminator’s motive may be highly relevant and sometimes necessary in determining whether there was discrimination on racial grounds. This is not based on whether there is ‘inherent discrimination’, but even in ‘obvious’ cases the tribunal is not precluded from looking at the state of mind of the discriminator. However, once discrimination has been established, it is unaffected by the underlying motive for it.

(3) The test applied by JFS (and the OCR) was based on fundamental Orthodox Jewish religious law to the exclusion of any consideration of ethnicity. To say this ground is racial is to confuse the effect of the treatment with the ground itself. M was discriminated against, but on religious grounds. To reduce the religious element to a mere motive is to misrepresent what the OCR is doing. This is not a case of direct discrimination on racial grounds.

Per Lord Rodger and Lord Brown (dissenting):

(1) The point of designating schools as having a religious character is to provide a gen-eral education within a religious framework. JFS’s aim to instil Jewish values into children who are Jewish in the eyes of Orthodoxy is legitimate. If JFS’s aims and objectives are legitimate, then a policy of giving preference to children who are Jewish under Orthodox Jewish principles is necessary and proportionate. The policy was therefore a proportionate means of achieving a legitimate aim and did not amount to indirect discrimination.

(2) To impose a religious practice test would narrow rather than widen the character of the school’s intake. The fact that many of those admitted do not practise the Jewish faith is intended and welcomed. To make the test based on religious observance would require the school to educate those who are not recognised as Jewish by Orthodox Jewish law at the expense of those who are.

Per Lord Clarke:

(1) There are two types of direct discrimination. The first is where the decision was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial. Where the criteria adopted are inherently racial, the motive of the alleged discriminator is irrelevant. However, the motive of the alleged discriminator may be relevant where, without investigating their state of mind, it is not possible to say whether discrimination is on ethnic grounds or not (Nagarajan v London Regional Transport [2000] 1 AC 501 applied).

(2) If the criteria involved discrimination based on ethnic grounds, as it did here, the decision was taken on a ground that was inherently racial and there was direct discrimination, regardless of the subjective state of mind of the JFS or the OCR.

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Per Lord Mance:

(1) The purpose of the Act is to ensure each person is treated as an individual. To treat individual applicants to a school less favourably than others because of the happenstance of their respective ancestries is not to treat them as individuals but as members in a group defined in a manner unrelated to their individual attributes.

(2) The freedom to manifest one’s religion or beliefs is, under Article 9(2) of the European Convention on Human Rights, subject to such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.

for the first appellant (jfs): lord pannick qc, peter oldham and professor christopher mccrudden; instructed by stone king sewell llp for the second appellant (united synagogue): ben jaffey; instructed by farrer & co llp for the respondent: dinah rose qc and helen mountfield; instructed by bindmans llp for the intervener the board of deputies of british jews: david wolfson qc, sam grodzinski and professor aileen mccolgan; instructed by teacher stern selby for the intervener the equality and human rights commission: robin allen qc and will dobson; instructed by the equality and human rights commission for the intervener the secretary of state for children, schools and families: thomas linden qc and dan squires; instructed by treasury solicitors for the intervener the british humanist association: david wolfe and adam sandell; instructed by leigh day & co

[2009] uksc 15; [2010] elr 26; [2010] irlr 136; [2010] ptsr 147; [2010] 1 all er 319; [2010] 2 wlr 153; 27 bhrc 656; [2010] 2 ac 728


discrimination | race | school admissions | policy based on jewish descent unjustified | See equality – R (on the application of E) v Governing Body of JFS & Ors

discrimination | sex | employment | military conscription of only men not objectionable

MARSHALL & ORS V DEPUTY GOVERNOR OF BERMUDA & ORS judicial committee of the privy council bermudalord phillips, lord saville, lady hale, 24 may 2010lord brown and lord mance

M was aggrieved with the practice of conscription employed by The Bermuda Regiment

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(‘the Regiment’), Bermuda’s sole military force. M contended that the practice discrimi-nated against men contrary to s 6(1)(a),(e)&(g)5 of the Human Rights Act 1981 (HRA) because, whilst both men and women could volunteer to join the Regiment, only men were subjected to compulsory conscription. M also argued that conscription was unlawful as DGB had failed to prove that the number of volunteers was inadequate as required by s 46 of the Defence Act 1965 (‘the Defence Act’), given that DGB had not reviewed the size of the Regiment in a reasonable manner or taken all reasonable steps to recruit volun-teers. M further contended that DGB proceeded under an error of law in assuming that he had no duty to recruit volunteers, that DGB resorted to conscription without considering the possibility of establishing a quota of women in the Regiment, and that call-up notices to conscription were invalid because DGB erred in delegating their publication. M’s chal-lenge was rejected by the Chief Justice and the Court of Appeal and he thus appealed to the Privy Council.

In dismissing the appeal and confirming that the Bermudan conscription procedure is lawful, it was held that:

(1) Whilst conscription discriminates against men under s 27 HRA, this discrimination is not unlawful under s 6(1) HRA. Section 6(1)(a) treats employment as desirable and makes treating a person less favourably by denying him or her employment, or the chance of obtaining employment, unlawful. M’s proposed interpretation of s 6(1)(a) is untenable, as it (a) treats employment as a detriment and (b) suggests that women are refused employment in the Regiment, when in fact female volunteers are encouraged to join. Similarly, M cannot rely on s 6(1)(e) because, even assuming that conscripts constitute an ‘employment classification or category’, the maintenance of that classification or category does not exclude any person or class of person from employment; rather, anyone may join the Regiment as a volunteer. Regarding s 6(1)(g), M’s argument that conscription obligations constitute a ‘special term or condition of employment’ that treats conscripted men less fairly than women must fail, because conscription is not a ‘term or condition of employment’ it is a manner of procuring employment. Once they join the Regiment, conscripts and volunteers, be they male or female, are employed on identical terms.

(2) The Chief Justice in this case held that, under s 4 of the Defence Act, conscription is only permitted if voluntary recruitment fails and that DGB bears the burden of prov-ing such failure by establishing that (a) DGB has addressed the size of the Regiment in a reasonable manner and (b) all reasonable steps have been taken to recruit vol-unteers. The Chief Justice went on to hold that DGB had discharged this burden, thereby answering the aforementioned questions of fact affirmatively, and the Court of Appeal upheld this finding. DGB has not sought to challenge the lower courts’ approach to s 4 and thus this issue turns on questions of fact. It is not for the Privy Council to overturn findings of fact confirmed by two previous courts unless there are compelling reasons to do so (Director of Public Prosecutions of Mauritius v Hurnam [2007] UKPC 24 at [23] and Devi v Roy [1946] AC 508 at pp 521-522 applied). M has not provided any compelling reason and thus the lower courts’ conclusions on this issue should be followed.

(3) The argument that DGB proceeded under an error of law in assuming that he had no

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duty to recruit volunteers before resorting to conscription is immaterial, as (a) simply because a party advances a legal argument it does not necessarily follow that s/he has governed his conduct according to it, and (b) the lower courts have found that DGB complied with his obligations as they actually existed not as he asserted them to be.

(4) DGB ‘could not fill a proportion of the Regiment with a fixed quota of women vol-unteers any more than King Canute could halt the incoming tide’. It is unclear how such a quota could assist with the task of recruitment or why DGB should consider such a requirement. Furthermore, the available evidence suggests it is unlikely that sufficient women volunteers could be found to fill any quota.

(5) The publication of notices calling up men for conscription is a purely mechanical administrative act and one that can properly be delegated by DGB to administrative staff under the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 ALL ER 560 and Evans v Minister for Education [2006] Bda LR 52 applied). Therefore, the conscription notice issued to M was not invalid.

Observations

Per Lord Phillips:

(1) There is no obvious reason why protection from discrimination should not extend to cover conscription. It is plain that some, if not all, of the roles performed by the Regiment could just as well be performed by women.

(2) The findings of the Chief Justice relating to s 4 of the Defence Act are open to ques-tion, in particular that DGB bears the burden of proving that s/he has taken all rea-sonable steps to attract volunteer recruits.

Per Lady Hale:

Outdated assumptions about women’s roles and abilities usually result in less favourable treatment of women, but this case demonstrates that they can also result in less favour-able treatment of men. As the law stands in Bermuda, men are discriminated against in relation to conscription but such discrimination is not rendered unlawful and the Government of Bermuda does not have to justify it. This is unsatisfactory and M has a legitimate grievance in that he has been treated less favourably than his fellow country-women. The Bermudan legislators may wish to consider reform to address this issue.

for the appellant: jonathan crow qc and delroy duncan; instructed by dorsey & whitney (europe) llp for the respondent: rabinder singh qc, howard stevens and huw shepheard; instructed by charles russell llp

[2010] ukpc 9

Full text of judgment at http://www.bailii.org/uk/cases/UKPC/2010/9.html

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discrimination | sex | marriage | bar on continued employment afterwards unjustified but constitutional

JOHNSON AND BALWANT V THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO judicial committee of the privy council trinidad & tobagolord rodger, lord walker, lady hale, 14 dec 2009lord collins and lord kerr

J was a divorced female police officer and B was an unmarried female employee of the San Fernando City Corporation. Regulation 52 of the Police Service Commission Regulations (‘the PSC Regulations’) and regulation 58 of the Statutory Authorities Service Commission Regulations (‘the SASC Regulations’), which applied to J and B respectively, provided that the employment of married female (police and statutory authority) officers could be termi-nated on the ground that their family obligations were affecting their ability to perform their duties efficiently. J and B argued that both provisions unfairly discriminated against women in violation of s 4(b) and/or (d)8 of the Constitution, that they were therefore void under s 29 of the Constitution and that consequently they should be read as severed from each set of Regulations under s 5(1)10 of the Constitution. J and B indicated that they wished to (re-)marry but were dissuaded from doing so because they would then be vulnerable to an addi-tional ground for termination of their employment. Both the High Court and the Court of Appeal dismissed the complaints. J and B appealed to the Privy Council.

In dismissing the appeals, determining that both regulations were discriminatory but nonetheless consistent with the Constitution, it was held that:

(1) Both regulation 52 of the PSC Regulations and regulation 58 of the SASC Regulations discriminate on the grounds of sex: they impact on female officers in deciding wheth-er or not to marry but do not affect male officers in the same way, as they provide a ground for termination of employment that only applies to married female officers. Such discrimination would normally be unlawful under s 4 of the Constitution.

(2) However, the argument by J and B ignores ss 6(1)&(2)11 of the Constitution, the effect of which is that an ‘existing law’ is not invalidated by s 4 of the Constitution and should not be regarded as inconsistent with the Constitution by virtue of s 4. An ‘existing law’ is a law that was in force immediately before the commencement of the current (1976) Constitution.12 Under s 18 of the Schedule to the Constitution of the Republic of Trinidad and Tobago Act 1976 (‘the Act’), laws that were not declared void under the previous (1962) Constitution are deemed to have been validly made and in force immediately before the commencement of the current Constitution. Therefore, as regulations 52 and 58 were not declared void under the previous Constitution, they are ‘existing laws’ for the purposes of s 6 of the current Constitution. The result is that s 4 does not invalidate regulations 52 and 58 and thus, despite discriminating against women by reason of their sex, the two provisions are constitutional.

(3) This conclusion does not overlook s 5(1)13 of the Act, which provides that existing laws should be construed in a manner that ensures conformity with the Constitution. The

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Constitution is the supreme law and, as regulations 52 and 58 are consistent with it by virtue of s 6, nothing needs to be done to bring them in line with the Constitution. Section 5(1) is thus inapplicable in this case (Matthew v State of Trinidad and Tobago [2004] UKPC 33 and Boyce v The Queen [2004] UKPC 32 applied).

(4) The appeal must be dismissed because the regulations are constitutional. However, the legal position is unsatisfactory and it is hoped that steps will be taken to remove the provisions.

for the appellant: sir fenton ramsahoye sc, alan newman qc and anand ramlogan; instructed by bankside law for the respondent: peter knox qc; instructed by charles russell llp

[2009] ukpc 53


discrimination | sexual orientation | criminalisation of same-sex relations by soldiers unjustified | See refugees – Smith v Canada (Minister of Citizenship and Immigration)

equality before the law | elections | voting | indigenous people’s chief and council | residence requirement justifiable | See political participation – Woodward

v Council of the Fort McMurray & Ors; Cockerill v Fort McMurray First Nation #468 & Ors

equality before the law | public service | hereditary appointments unjustified

SURENDER PASWAN & ORS V STATE OF BIHAR & ORS supreme court indiaraveendran and lodha jj 19 apr 2010 This case concerned the process by which Chowkidars (village watchmen) were appointed in Madhepura District, Bihar. In the pre-constitutional set-up, Chowkidars were appoint-ed for life and the legal heir or nominee of a Chowkidar (usually, though not necessarily, a relative) replaced the Chowkidar if he became infirm or died. During the post-consti-tutional set-up, this practice decreased, changes occurred and regular public service with appointments based on equal opportunity prevailed. At the time of the case, the Supreme Court had previously held (Yogender Pal Singh v Union of India [1987 (1) SCC 631]) that (a) public service opportunities should be open to all citizens equally, (b) preference in public employment on the grounds of descent was unconstitutional, and (c) that any provision conferring a preferential right to appointment on relatives of persons employed or previ-ously employed in public service would be contrary to Article 1614 of the Constitution.

In 1995 Chowkidar positions were advertised and filled (‘the 1995 appointments’). On 20

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December 1995 the Bihar State Government issued a circular stating that, after 10 January 1990, when a Chowkidar retired or died, his legal heir would be appointed to his post, as an exception to the general rule of public recruitment. P, one of a number of family members of erstwhile Chowkidars, challenged the 1995 appointments on the basis that, by virtue of the circular, they should have been appointed. As a result, the 1995 appointees had their positions cancelled. The State petitioned the High Court to complain about the cancellations and the High Court declared them to be illegal. A High Court order of 7 April 1997 decreed that the Divisional Commissioner, Saharsa should (a) decide whether there was any illegality or irregularity in the 1995 appointments, (b) if there were no irregularities in their appoint-ments allow the 1995 appointees to continue in the posts and (c) if there were any irregulari-ties in the 1995 appointments, the District Magistrate, Madhepura, should take fresh steps for appointment and P should be given an opportunity to compete with others on merit (without giving any advantage on account of being a legal heir of an erstwhile Chowkidar).

The Divisional Commissioner concluded that there were irregularities in the 1995 appoint-ments and thus ordered the Collector, Madhepura to make fresh appointments. The Collector relied on the 1995 circular and consequently the legal heirs of the Chowkidars obtained the posts. The High Court quashed these appointments and this decision was upheld by the Division Bench. P appealed to the Supreme Court, arguing that he and oth-ers had been working in the place of their predecessors for nearly two decades and that the circular was the valid appointment procedure at the time of his appointment. The State argued that the kinship rule had been abolished at the time of the circular and thus the appointment of P was illegal as there had been no competitive selection process.

In dismissing the appeal, it was held that:

The High Court order of 7 April 1997 stands and thus P cannot claim any right to appointment as Chowkidar. As irregularities were found with the 1995 appointments, there should be a fresh, open selection process determined by merit. Both P and the 1995 appointees shall have the chance to apply for the Chowkidar posts, subject to them fulfill-ing the eligibility criteria. The selection procedure shall proceed in accordance with the Bihar Chowkidar Gradation Rules 2006 and must be completed within six months. In the interim P (and the others in his position) may continue as Chowkidars on an ad hoc basis.

[2010] insc 291


equality before the law | public service | promotion system | absence of objective criteria unjustified

AZIZ-UD-DIN & ORS V FEDERATION OF PAKISTAN 15

supreme court pakistanchaudhry cj, ahmed and rabbani jj 28 apr 2010

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A, an employee of the Pakistani Foreign Service, alleged that the Government of Pakistan had made promotions within the Foreign Service in violation of the Constitution and principles of ‘merit, seniority and fair play’. A claimed that his fundamental right to fair career progression was violated when more junior staff were promoted instead of him without any justification. A argued that the government was required to produce rules governing promotions within the public service and that an absence of such rules con-stituted exploitation within Article 316 of the Constitution; that s 917 of the Civil Servants Act 1973 (CSA) mandated that recruitment must be based on merit and that therefore there was no discretion in promotion; alternatively, that if there was room for discretion in recruitment then this should be exercised in a transparent and structured fashion with reasons given and due regard paid to equality of opportunity guaranteed by Article 2A18 of the Constitution; and that unjustifiably depriving a public servant of promotion amounts to a breach of the right to life under Article 919 of the Constitution. A contended that FP had not complied with any of these principles. FP resisted A’s application, arguing that discretion in recruitment was only invalid if exercised illegally, maliciously or in a biased manner; that the discretion was exercised appropriately in this case; that there was no constitutional right to promotion; that A’s constitutional rights had not been violated; and that the Government had been trying to ensure gender balance in effecting the promo-tions in the impugned manner.

In determining that the system of promotion employed by the Government was uncon-stitutional, it was held that:

(1) By virtue of s 9(2)&(3) CSA, promotions to the Foreign Service posts in dispute in this case (‘the disputed promotions’) must be made solely on the basis of merit. The Government must exercise its discretion in terms of public service promotion in accordance with case law principles and in a manner that is reasonable, fair and trans-parent; must not act arbitrarily, discriminatorily or mala fide; and must apply known principles and rules so that decisions are predictable (Aman Ullah Khan and others v The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Abdul Wahab and another v Secretary, Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation v D.T.C. Mazdoor Congress and others (AIR 1991 SC 101) applied).

(2) The manner in which the promotions were made in this case breached the require-ments propounded in the Rules of Business, as information on some of the officers eligible for promotion was not even put before the competent authority (the Prime Minister of Pakistan). The failure to consider these officers for promotion means that the discretion was exercised arbitrarily as opposed to in a fair, reasonable and trans-parent manner (Aman Ullah Khan (above), Chairman, Regional Transport Authority, Rawalpindi v Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14) and Abu Bakar Siddique v Collector of Customs (2006 SCMR 705) applied).

(3) Promotion is not a right but an officer eligible for promotion deserves to have his case for promotion considered in accordance with law.

(4) Selection on merit should take place after assessment of all relevant considerations, including competence and good service record. Where several candidates are of equal merit, credibility, confidence and seniority play a role in the selection process

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(State of West Bengal v Manas Kumar Chakrabarti (AIR 2003 SC 524) applied). The Government has not suggested that the non-promoted officers were lacking in any of the aforementioned areas when compared to the promoted officers, and indeed rel-evant information on the non-promoted officers was not even submitted to the Prime Minister for consideration. Even ignoring all other factors, there is no justification for the fact that more junior officers were promoted when eligible senior officers were not even considered for promotion.

(5) The promotion process should have proceeded via the presentation of the case of each eligible officer and then the government exercising its discretion in line with the principles of the rule of law. This was not done and there has therefore been a violation of Article 420 of the Constitution, according to which it is an inalienable right of individuals to be dealt with in accordance with law (in this case s 9(a)&(b) CSA). Although the Civil Servants (Appointment & Tenure of Post) Rules 1993 were rescinded in 1998, the competent authority could have used them as guidelines to ensure just, fair and non-discriminatory treatment of officers who had a legitimate expectation of being promoted.

(6) Promoting a junior officer, whilst ignoring senior officers who are eligible for pro-motion, does not advance the object of achieving good governance. It is a settled principle of law that good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and that instead it is achieved by following the rules of justness, fairness and openness, in line with constitutional values. In this case, public service employees have been unjustifiably deprived of promotion, which will indirectly affect the smooth functioning of government, due to despondency within the workforce. Institutions are destroyed where promotions or appointments are made in violation of law. Good governance is dependent upon an honest bureau-cracy, which can only be obtained if promotions are made on merit in accordance with the Constitution and the law, without favouritism or nepotism.

(7) The protection afforded by Article 2521 of the Constitution, i.e. protection from inequality of treatment, may be denied if this is done on the basis of reasonable clas-sification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. However, the differentia must have a rational nexus to the objective sought to be achieved (Dr Mobashir Hassan v Federation of Pakistan and others (PLD 2010 SC 265) applied). No attempt has been made by the government to bring the cases of the promoted officers under any rea-sonable classification.

(8) There can be no concession on the grounds of race, religion, caste, sex, residence or place of birth in appointing persons to public service, as such would breach Article 25(2) of the Constitution, and therefore the Government’s argument that their approach to promotion sought to maintain gender balance is unsustainable.

(9) The promotions in this case were made with complete disregard for the law. Therefore, the promotions should be reconsidered in light of this judgment. Those previously promoted shall cease to be entitled to any benefits dependent on promo-tion. It is recommended that the Civil Servants (Appointment & Tenure of Post) Rules 1993 be re-enacted to ensure justice and fairness.

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for the applicants: mr muhammad akram sheikh, mr sajeel shehryar, mr m ikram chaudhry, dr muhammad aslam khaki, mr afnan karim kundi, mr haider hussain and mr saleemullah khan for the respondent: mr abdul hafeez pirzada, mian hassan aurangzeb, mr m s khattak, mr ismail qureshi, mr munir ahmed, syed mubashar raza, mr ishtiaq h andrabi and mr shair bahadur khan

h.r.c. no. 8340-g/2009

Full text of judgment at http://www.supremecourt.gov.pk/web/user_files/File/HR8340OF2010.pdf

1. Section 1(1)(a) provides: ‘A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if: (a) on racial grounds he treats that other less favourably than he treats or would treat other persons.’

2. Section 1(1A) provides: ‘A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but: (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts or would put that other at that disadvantage, and (c) which he cannot show to be a propor-tionate means of achieving a legitimate aim.’

3. Section 71(1) provides: ‘Everybody or other person speci-fied in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need: (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good rela-tions between persons of different racial groups.’

4. Section 3 defines ‘racial grounds’ to mean: ‘any of the fol-lowing grounds, namely colour, race, nationality or ethnic or national origins.’

5. Section 6(1) provides: ‘Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2(2) by— (a) refusing to refer or to recruit any person or class of persons (as defined in section 2) for employment; […] (e) establishing or maintaining any employment classification or category that by its descrip-tion or operation excludes any person or class of persons (as defined in section 2) from employment or continued employment; […] or (g) providing in respect of any employee any special term or condition of employment, provided that nothing in this subsection shall render unlawful the maintenance of fixed quotas by reference to sex in regard to the employment of persons in the Bermuda Regiment, the Bermuda police, the Prisons service or in regard to the employment of persons in a hospital to care for persons suf-fering from mental disorder. […]’

6. Section 4 provides: ‘The regiment shall be raised and

maintained by means of voluntary enlistment, and also, in case voluntary enlistment proves inadequate for the raising or maintenance of the regiment, by means of compulsory mili-tary service, in the manner hereinafter in this Act provided.’

7. Section 2(2) provides: ‘For the purposes of this Act a person shall be deemed to discriminate against another per-son— (a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because— […] (ii) of his sex […].’

8. Section 4 provides: ‘It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely– […] (b) the right of the individual to equality before the law and the protection of the law; […] (d) the right of the individual to equality of treatment from any public authority in the exercise of any functions […].’

9. Section 2 provides: ‘This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsist-ent with this Constitution is void to the extent of the incon-sistency.’

10. Section 5(1) provides: ‘Except as is otherwise expressly provided in this Chapter and in section 54, no law may abro-gate, abridge or infringe or authorise the abrogation, abridg-ment or infringement of any of the rights and freedoms hereinbefore recognised and declared.’

11. Section 6 provides: ‘(1) Nothing in sections 4 and 5 shall invalidate- (a) an existing law; (b) an enactment that repeals and re-enacts an existing law without alteration; or (c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right. (2) Where an enact-ment repeals and re-enacts with modifications an existing law and is held to derogate from any fundamental right guaran-teed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right then, subject to sections 13 and 54, the provisions of the

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Expression defamation | matter of public interest | responsible communication defence created

GRANT & ANOR V TORSTAR CORP & ORS supreme court canadamclachlin cj, binnie, lebel, deschamps, fish, abella, 22 dec 2009charron, rothstein and cromwell jj G brought a libel action against a newspaper and reporter after an article was published in relation to a proposed golf course development on G’s estate. The story contained details of G’s political connections and published interviews with local residents claiming that the development would be bad for the environment and that they were suspicious that G was using his political influence to secure government approval for the golf course (G needed to obtain Crown land for the development). One particular neighbour was quoted as saying that because of G’s influence ‘everyone thinks it’s a done deal’. The experienced journalist who wrote the story conducted an investigation prior to publication, involving

existing law shall be substituted for such of the provisions of the enactment as are held to derogate from the fundamental right in a manner in which or to an extent to which the exist-ing law did not previously derogate from that right.’

12. Under s 6(3) of the Constitution.

13. Section 5(1) provides: ‘Subject to the provisions of this section, the operation of the existing law on and after the appointed day shall not be affected by the revocation of the Order-in-Council of 1962 but the existing laws shall be con-strued with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into con-formity with this Act.’

14. Article 16 provides: ‘(1) There shall be equality of oppor-tunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. […]’

15. Also known as Human Rights Cases No.8340, 9504-G, 13936-G, 13635-P & 14306-G TO 14309-G OF 2009.

16. Article 3 provides: ‘The State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work.’

17. Section 9 provides: ‘(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs. […] (2) A post referred

to in sub-section (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed– (a) in the case of a selection post, on the basis of selection on merit; and (b) in the case of a non-selection post, on the basis of seniority-cum-fitness. (3) Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman, Federal Public Service Commission.’

18. Article 2A provides: ‘The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.’

19. Article 9 provides: ‘No person shall be deprived of life or liberty save in accordance with law.’

20. Article 4 provides: ‘(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other per-son for the time being within Pakistan. (2) In particular:- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hin-dered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do.’

21. Article 25 provides: ‘(1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special pro-vision for the protection of women and children.’

equality | expression

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document research and interviews with residents and government representatives, and repeatedly attempted to verify the allegations against G by asking to G to respond to them, which G declined to do. When the case went to trial, TC argued that Canadian law was lacking in a defamation defence based on ‘public interest responsible journalism’. The judge accepted that such a defence may exist, but held that any such defence would not apply in the present circumstances and thus that the jury had to decide on the defences of truth and fair comment. The jury rejected these defences and G was awarded gen-eral, aggravated and punitive damages totalling $1.475 million. On appeal to the Court of Appeal, it was concluded that the trial judge had erred in failing to leave a defence of ‘responsible journalism’ to the jury. The court also concluded that the judge’s instructions to the jury were flawed, and ordered a new trial. G appealed to the Supreme Court for rein-statement of the jury verdict. TC cross-appealed, asking the court to apply the new defence in this case and dismiss the action. In the alternative, TC asked the court to dismiss the action on the basis of fair comment.

In dismissing both the appeal and cross-appeal and creating a new defamation defence of ‘responsible communication on matters of public interest’ (Abella J partially dissenting), it was held that:

(1) In Canadian defamation law, a plaintiff is required to prove three things to obtain judgment and an award of damages: (a) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, (b) that the words in fact referred to the plaintiff; and (c) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed. The plaintiff is not required to show that the defen-dant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability, namely privilege, fair comment (for statements of opinion) and justification (for statements of fact).

(2) As the current law stands, the only defences available to journalists in relation to allegedly defamatory statements of fact are therefore (a) privilege and (b) justifica-tion. Privilege has traditionally been of little assistance to the media and, regarding justification, even where a journalist goes to great lengths to verify sources and satisfy himself that a statement is substantially true, it is difficult to prove absolute truth in court. To insist on court-established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also of inhibiting political discourse and debate on matters of public importance, and impeding discussion necessary to discover the truth. The cur-rent law does not give adequate weight to the constitutional value of free expression enshrined in s 2(b)1 of the Canadian Charter of Rights and Freedoms. The current level of protection afforded to reputation – in effect a regime of strict liability – under the law is not justifiable. Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognised in the text of s 2(b) itself.

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(3) Accordingly, the law should be modified to include a new defence available to jour-nalists in defamation actions involving statements of fact, and this defence should be based on the conduct of the journalist in publishing the article. This represents a balanced approach to libel law that protects the interests of both plaintiffs and defen-dants (Cusson v Quan 2007 ONCA 771 and Ballina Shire Council v Ringland (1994) 33 N.S.W.L.R. 680 (C.A.) at p 700 considered). Although the right to free expression does not confer a licence to ruin reputation, when proper weight is given to the con-stitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.

(4) A consideration of the jurisprudence of other common law democracies also favours replacing the current Canadian law with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation (decisions from the US, UK, Australia, New Zealand and South Africa considered). A defence that would allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest represents a rea-sonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society. The law of defamation should therefore be modified to recognise a defence of ‘responsible communication on matters of public interest’ (‘the responsible communication defence’).

(5) The proposed change to the law should be seen as a new defence, keeping the defence of qualified privilege unchanged (Reynolds v Times Newspapers Ltd [1999] 4 All ER 609 and Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44 consid-ered). The test for the responsible communication defence comprises two elements: (a) the publication must be on a matter of public interest, and (b) the defendant must show that publication was responsible, in that s/he was diligent in trying to verify the allegation(s) having regard to all the relevant circumstances (Cusson v Quan (above) considered).

(6) Whether or not a publication is on a matter of public interest is a question for the judge to decide. The judge must consider the subject matter of the publication as a whole; the defamatory statement should not be scrutinised in isolation. To be of public interest, the subject matter ‘must be shown to be one inviting public atten-tion, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached’ (Raymond E Brown, The Law of Defamation in Canada (Second Edn Vol 2, Carswell Legal Publications, 1999)). Public interest is not the same thing as ‘of interest to the public’. Some segment of the public must have a genuine stake in knowing about the matter published. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a public figure.

(7) If it is established that the defamatory publication relates to a matter of public interest, the judge should then refer the question of whether or not publication was respon-sible to the jury. The following factors may aid the jury in determining this question:

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(a) the seriousness of the allegation, (b) the public importance of the matter, (c) the urgency of the matter, (d) the status and reliability of the source, (e) whether the plain-tiff’s side of the story was sought and accurately reported, (f) whether the inclusion of the defamatory statement was justifiable, (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (‘reportage’), and (h) any other relevant circumstances (Reynolds v Times Newspapers (above), Galloway v Telegraph Group Ltd [2004] EWHC 2786 (QB) and other UK cases considered). Ultimately, all matters relevant to whether the defendant communicated responsibly can be considered.

(8) In relation to factor (g), while the ‘repetition rule’ holds that repeating a libel has the same legal consequences as originating it, under the reportage exception, the repeti-tion rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. If a dispute is itself a matter of public interest and the allegations are fairly reported, the report will be found to be responsible even if some of the statements made may be defamatory and untrue, provided: (a) the report attributes the statement to a person, preferably iden-tified, thereby avoiding total unaccountability, (b) the report indicates, expressly or implicitly, that its truth has not been verified, (c) the report sets out both sides of the dispute fairly, and (d) the report provides the context in which the statements were made (Al Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634 at [52], Prince Radu of Hohenzollern v Houston [2007] EWHC 2735 (QB) and Roberts v Gable [2007] EWCA Civ 721 considered). The ultimate question is always whether publication was responsible in the circumstances.

(9) In this case, the responsible communication defence should have been left to the jury in addition to the defences of justification and fair comment. In addition, the judge’s directions in relation to fair comment were flawed. Accordingly, applying the thresh-old test in s 134(6) Courts of Justice Act, there should be a fresh trial.

Per Abella J (partially dissenting):

It should be for the judge and not the jury to decide the second step of the test for the responsible communication defence. There is very little conceptual difference between deciding whether a communication is in the public interest and whether it is responsibly made, and both are legal, not factual, issues. This defence is a highly complex legal deter-mination with constitutional dimensions, and that takes it beyond the jury’s jurisdiction and squarely into judicial territory.

for the appellant: peter a downard, catherine m wiley and dawn k robertson; instructed by fasken martineau dumoulin, toronto for the respondent: paul b schabas, erin hoult and iris fischer; instructed by blake, cassels & graydon, toronto for the intervener the ottawa citizen: richard g dearden and wendy j wagner; instructed by gowling lafleur henderson, ottawa for the interveners the canadian newspaper association, ad idem/canadian media lawyers association, rtnda canada/association of electronic journalists,

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magazines canada, the canadian association of journalists, the canadian journalists for free expression, the writers’ union of canada, the professional writers association of canada, the book and periodical council and pen canada: brian macleod rogers and blair mackenzie; instructed by brian macleod rogers, toronto for the intervener the canadian broadcasting corporation: daniel j henry; instructed by the canadian broadcasting corporation, toronto for the intervener the canadian civil liberties association: patricia d s jackson, andrew e bernstein and jennifer a conroy; instructed by torys, toronto for the intervener danno cusson: ronald f caza and jeff g saikaley; instructed by heenan blaikie, ottawa

2009 scc 61; [2009] 3 scr 640

Full text of judgment at http://www.canlii.org/en/ca/scc/doc/2009/2009scc61/2009scc61.html

journalists | sources | confidentiality outweighed by need to investigate crime

R V NATIONAL POST supreme court canadamclachlin cj, binnie, lebel, deschamps, fish, 7 may 2010abella, charron, rothstein and cromwell jj A secret source, X, was promised confidentiality in return for providing information to a journalist, M, working for NP. The information concerned C, then Prime Minister of Canada, and his supposed improper involvement in a loan from a federally funded bank to a hotel which allegedly owed a debt to C’s family investment company. M was sent a document in a sealed envelope in the mail that appeared to be the bank’s authorisation of the loan to the hotel. M forwarded copies of the document to the bank and the Prime Minister’s office and lawyer. All three recipients maintained that the document was a forgery, though in the circumstances M believed X to be a reliable source and one wor-thy of protection. The bank involved complained to the Royal Canadian Mounted Police (RCMP). When NP refused to provide the document and envelope to the RCMP in order to protect the identity of X, the RCMP applied for and was granted (in an ex parte hear-ing) a search warrant for NP’s premises and an assistance order compelling the editor of NP to help the police locate the document and envelope. The RCMP’s intention was to subject the items to forensic testing to identify the source of the forgery and thus the perpetrator of a crime. NP was given one month before the search could be carried out and the warrant and order contained other terms designed to accommodate NP’s needs as a media entity. NP applied to quash the warrant and order, and the reviewing judge set aside both on the basis that there was only a remote possibility that disclosure of the docu-ment and envelope would advance a criminal investigation. The Court of Appeal reversed

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that decision and reinstated the warrant and order. NP appealed to the Supreme Court, arguing that the warrant and order infringed s 2(b)2 or s 83 of the Canadian Charter of Rights and Freedoms (‘the Charter’), or that secret sources are protected by the common law of privilege.

In dismissing the appeal and confirming the search warrant and assistance order (Abella J dissenting), it was held that:

(1) There is no constitutional right to the protection of confidential sources; s 2(b) of the Charter protects freedom of expression not specific methods of news gathering, however important these may be to news dissemination. Freedom of expression is enjoyed by everyone, not just the traditional media, and so to confer a constitutional immunity on such a wide variety of writers and speakers and whichever sources they deem worthy of protection would ‘blow a giant hole in law enforcement and other constitutionally recognised values such as privacy’. Accordingly, a judicial order requiring disclosure of a confidential source would not generally breach s 2(b). In addition, it is not practicable to attach a ‘class privilege’ to the journalist-confidential source relationship, as the relationship is unregulated, there is no clarity as to the division of rights and limits within it, and such an approach is rigid and does not allow for the variety of situations that would arise (Moysa v Alberta (Labour Relations Board) [1989] 1 SCR 1572, R v Gruenke [1991] 3 SCR 263 and a number of UK, US and Australian cases considered).

(2) Instead, in cases where the State seeks disclosure of a confidential source from the media, courts should apply the Professor Wigmore criteria for establishing confiden-tiality privilege at common law. The ‘Wigmore criteria’ consist of four elements: first, the communication must originate in a confidence that the identity of the informant will not be disclosed; second, the confidence must be essential to the relationship in which the communication arises; third, the relationship must be one which should be ‘sedulously fostered’ in the public good; and finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth (Professor Wigmore, Wigmore on Evidence (Vol 8, McNaughton Rev, 1961) at 2285 applied and Sanoma Uitgevers BV v The Netherlands (European Court of Human Rights, Application No. 38224/03, 14 September 2010, unreported) considered).

(3) The first two criteria are uncontroversial: the media agree that privilege can only be claimed where information is explicitly exchanged for a promise of confidentiality and the necessity for confidentiality is the raison d’être for the existence of the privi-lege. As regards the third criteria, the relationship between professional journalists and their secret sources is a relationship that should generally be ‘sedulously fostered’ in the public good. The fourth criterion does most of the work and requires the court to balance the competing public interests in (a) the suppression of crime and (b) the free flow of accurate and pertinent information. Civil society requires the former and democratic institutions and social justice will suffer without the latter. Underlying this analysis is the need to achieve proportionality in striking a balance between the competing interests.

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(4) Factors relevant in this balancing act include the nature and seriousness of the crime, the probative value in the evidence sought and the true purpose of the proposed investigation. It is a situation-specific privilege and its existence will depend upon a consideration of the circumstances. The simple fact that a crime has been com-mitted does not vitiate the privilege. Neither the source nor the journalist ‘owns’ the privilege; rather, its function is to facilitate freedom of expression between the media and the public. The public interest in free expression will always weigh heavily in the balance.

(5) Until the media have met all four Wigmore criteria no journalistic privilege arises. It is the media that advances the proposition that the public interest in protecting its secret source outweighs the public interest in the criminal investigation. The burden of persuasion therefore lies on the media.

(6) The first three Wigmore criteria are present in this case: the relationship between X and M originated in confidence and confidentiality was essential to the relation-ship, as without a promise of confidentiality X would never have transmitted the information. The importance of investigative journalism in exploring government impropriety means that the relationship between X and M should be ‘sedulously fostered’. However, the media fails on the fourth criteria, as in the circumstances the public interest in the investigation of crime outweighs the public interest in protecting confidential sources. The crime is serious and there is a real possibility of obtaining forensic evidence from the document and envelope. The fact that there is a possibility that forensic analysis may prove unsuccessful does not mean that the RCMP should be prevented from trying it, particularly given that such analysis has been shown to produce results in difficult circumstances. Finally, the document and envelope are not simply pieces of evidence, they are ‘the very actus reus of the alleged crime’. Journalists have no blanket right to suppress physical evidence of a crime, even where its production may disclose the identity of a confidential source. In these circumstances the scales come down in favour of ordering disclosure.

(7) Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their ‘special position’ and be reasonable in the ‘total-ity of circumstances’ as required by s 8 of the Charter. Indeed, the special position of the news media in relation to search warrants has been recognised by the courts, and courts must consider all the circumstances in determining whether to issue a warrant and pay particular attention to whether the information may be reasonably obtained from an alternative source (Canadian Broadcasting Corporation v Lessard [1991] 3 SCR 421 and Canadian Broadcasting Corporation v New Brunswick (Attorney General) [1991] 3 SCR 459 considered).

(8) In this case, the police have established that reasonable grounds exist to believe that criminal offences have been committed and that information relevant to those offenc-es will be obtained through the use of the search warrant and the supporting assis-tance order. The fact that the warrant was originally issued ex parte does not make the warrant unreasonable; the judge inserted adequate terms into the warrant to protect the special position of the media and to permit the media ample time and opportunity to point out why the warrant should be set aside (i.e. by suspending execution for one

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month). Further, other conditions for issuing a warrant were met, including estab-lishing that the search was a necessity of last resort and including a clause directing that any document seized be sealed on request (Canadian Broadcasting Corporation v Lessard (above) and Re Pacific Press; Descôteaux v Mierzwinski [1982] 1 SCR 860 applied). Accordingly, NP has not established a deficiency that requires the setting aside of the warrant on s 8 grounds. The assistance order was also reasonable under s 8, given the concerted action between M and the editor of NP.

Per LeBel and Abella JJ:

When an application for a search warrant is made there should be a presumptive require-ment of notice to the affected media organisation. The police could rebut the presump-tion by providing compelling reasons for not giving notice. NP should have been granted notice of the original hearing in this case.

Per Abella J (dissenting):

Confidential sources represent an important journalistic tool and, where reasonable efforts have been made to confirm the reliability of a source’s information, that source’s confidentiality ought to be protected, given the importance of such sources in ensuring the free flow of information from the media to the public (Grant v Torstar Corp 2009 SCC 61; 7 CHRLD 262, British Steel Corp v Granada Television Ltd [1981] 1 All ER 417, Financial Times Ltd v The United Kingdom [2009] ECHR 2065 and numerous other domestic and international cases considered). In this case, the media does not fail on the fourth Wigmore criteria; rather, all four stages of the test are satisfied. The information X pro-vided was crucial to M’s ability to write about a matter of significant importance, i.e. the Prime Minister’s potential improper involvement in a financial transaction, the provision of future information would be jeopardised by disclosure of X’s identity and M had good grounds for trusting the reliability of X’s information. In contrast, the disclosure of the document and envelope would result in only a remote possibility of advancing the crimi-nal investigation into the forgery, and this is far from sufficiently significant to outweigh the public benefit in protecting a rigorously thorough and responsible press.

for the appellants: marlys a edwardh, john norris and jessica orkin; instructed by marlys edwardh barristers professional corporation, toronto for the respondent: robert hubbard and susan magotiaux; instructed by crown law office – criminal, toronto for the intervener the attorney general of canada: cheryl j tobias qc, jeffrey g johnston and robert j frater; instructed by the department of justice, vancouver for the intervener the attorney general of new brunswick: gaétan migneault (written submissions only); instructed by the office of the attorney general, fredericton for the intervener the attorney general of alberta: jolaine antonio; instructed by alberta justice, calgary for the intervener bell globemedia inc: peter m jacobsen and tae mee park; instructed by bersenas jacobsen chouest thomson blackburn, toronto

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for the intervener the canadian broadcasting corporation: daniel j henry; instructed by the canadian broadcasting corporation, toronto for the intervener the british columbia civil liberties association: tim dickson; instructed by farris, vaughan, wills & murphy, vancouver for the intervener the canadian civil liberties association: jamie cameron and matthew milne-smith; instructed by osgoode hall law school of york university, north york and davies ward phillips & vineberg, toronto for the interveners the canadian newspaper association, ad idem/canadian media lawyers association, the canadian journalists for free expression, the canadian association of journalists, the professional writers association of canada, rtnda canada/association of electronic journalists, magazines canada, the canadian publishers’ council, the book and periodical council, the writers’ union of canada and pen canada: brian macleod rogers and iain a c mackinnon; instructed by brian macleod rogers, toronto

2010 scc 16; [2010] 1 scr 477


reporting restrictions | freezing assets of suspected terrorists | anonymity orders stifled debate of general interest

GUARDIAN NEWS AND MEDIA LTD & ORS, RE HM TREASURY V AHMED & ORS supreme court united kingdomlord phillips, lord hope, lord rodger, 27 jan 2010lord walker, lady hale, lord brown and lord kerr This was an application made by the press to have anonymity orders set aside in respect of the appeals of five individuals. The appellants’ names were concealed under anonym-ity orders when their appeals were first lodged in the administrative court. The first three appellants, A, K and M, were brothers and in 2007 they were informed that the Treasury had reasonable grounds for suspecting that they were or might be a person who facilitated the commission of acts of terrorism and were designated under Article 4 of the Terrorism (United Nations Measures) Order 2006 (‘TO 2006’). The three men denied the allega-tions. The Treasury decided, in accordance with Article 5(1)(a)(ii) TO 2006, to inform only certain persons about the order. In that situation Article 6 TO 2006 applied and the appellants were notified that unless they consented, or a court ordered that their names be disclosed for the purposes of the proceedings, their identities were to be treated as confidential. Although the identities of A, K and M remained anonymous, A and K had in fact left their residences in London without informing their solicitors or giving further instructions. As such, submissions could not be advanced on their behalf as to the effect

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that lifting the anonymity orders would have on them or their families. However, if the identities of A and K were revealed it would also have the effect of revealing the identity of M, their brother. Consequently, the court’s judgment concentrated on M and a final decision on A and K’s position had to wait until M’s position had been considered.

The fourth appellant was referred to as G. G received a letter on 13 December 2006 explain-ing that a direction had been made under Article 4 TO 2006. However, G’s identity was already in the public domain as it had been reported that he was subject to a freezing order. He was also informed by the Foreign and Commonwealth Office (the ‘FCO’) that the 1267 Committee of the United Nations Security Council (‘the 1267 Committee’) had added him to its consolidated list of persons associated with Osama Bin Laden, Al Qaida and the Taliban. As such, the court (in an earlier hearing) decided to lift the anonymity order and the press was able to report that G was actually Mr Mohammed al-Ghabra. The fifth appellant was known as HAY. On 6 October 2005 the FCO informed him that the 1267 Committee had added him to its consolidated list of persons who were subject to the freezing of their assets. On 10 October 2005 the Bank of England issued a press release naming HAY. In addition, previous articles had appeared in the press naming HAY (some mentioning his family and address), he had sued the Home Office in a public action under his real name and in fact he contributed to press reports in a professional capacity using his own name. Nonetheless, his anonymity order had remained in force.

The press argued that the effect of the anonymity orders was to prevent it from reporting information that either was, or normally would be, available to it (i.e. the identities of A, K, M and HAY) and that therefore the orders constituted an interference with its rights under Article 104 of the European Convention on Human Rights (‘the ECHR’). M objected to being identified as a person who was challenging a freezing order against him, which proceeded on the basis that the Treasury had reasonable grounds to suspect that he facili-tated, or may facilitate, terrorism. He submitted that publication of his name would cause serious damage to his reputation in circumstances in which he had not yet been convicted of any criminal offence and would be unable to challenge the substance of the allegations against him. He feared this would impact his association with the local Muslim commu-nity and affect his family life, in breach of Article 85 ECHR.

In allowing the application and lifting all remaining anonymity orders, it was held that:

(1) In cases where both Article 8 and Article 10 ECHR are in play, as is the case in the present claim, the court has to balance competing interests against each other, i.e. the right to respect for private and family life on one side against the right to freedom of expression on the other. In such a situation, neither article has precedence over the other nor is either presumed to be superior. Rather, the question for the court is the extent to which it is necessary to qualify one right in order to protect the underly-ing value which is protected by the other, always remembering that the extent of the qualification must be proportionate to the need (Campbell v MGN Ltd [2004] UKHL 22 and Von Hannover v Germany (2005) 40 EHRR 1 applied). The result is that the question of which interest prevails depends on the facts of the particular case.

(2) A key question in relation to the balancing exercise is whether or not a proposed pub-lication concerns a matter of general public interest. If it does, then Article 10 weighs heavy in the balance. Conversely, where the press seek to publish information simply

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to satisfy the curiosity of a readership regarding the details of an individual’s private life, Article 8 considerations are more likely to be given precedence (Von Hannover v Germany (above) considered).

(3) If publication of M’s identity were permitted, he would not be identified as someone who actually facilitated terrorism but as someone whom the Treasury claims to have reasonable grounds to suspect of facilitating terrorism. Although some members of the public might assume that M is a terrorist after reading the latter information, this does not justify the continuation of the anonymity order; rather, it should be assumed that the public is capable of drawing such a distinction as otherwise public discussion of such important matters would become impossible. Similarly, although allowing the press to identify M may lead to hostile press coverage towards M from some sec-tors of the press, this possibility is not a sufficient reason for curtailing the freedom for all members of the press. The possibility of abuse is just one of many factors to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom.

(4) Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed, and a newspaper story has much greater impact when it concerns an identifiable individual (News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246 at [39], dicta of Lord Steyn in In re S [2005] 1 AC 593 at [34] and other UK cases considered). In the present case, a report of the proceedings not naming the appellants would be less effective and in consequence informed debate about freez-ing orders would suffer. Indeed, the current anonymity orders are preventing the press from publishing a complete account of an important public matter because of the feared incidental effect it would have on an individual’s private life. The evidence relating to the alleged impact of publication on M’s private life is mainly speculative, whereas publishing M’s identity would make a material contribution to a debate of general interest.

(5) In all the circumstances, the Article 8 / Article 10 balancing act comes down strongly in favour of freedom of expression. There is ‘a powerful general, public interest in identifying M in any report of these important proceedings which justifies curtail-ment, to that extent, of his, and his family’s, Article 8 Convention rights to respect for their private and family life’. Consequently, the anonymity order in respect of M should be set aside and thus the orders in respect of A and K should also be dis-charged. The facts relating to HAY (see above) clearly support the discharge of the anonymity order in his case.

for the applicants: geoffrey robertson qc and anthony hudson; instructed by finers stephens innocent llp for the appellants: hugh tomlinson qc and dan squires; instructed by birnberg peirce and partners for the respondent: jonathan swift, sir michael wood and andrew o’connor; instructed by the treasury solicitor

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[2010] uksc 1; [2010] emlr 15; [2010] 2 all er 799; [2010] 2 ac 697; [2010] ukhrr 181; [2010] 2 wlr 325; [2010] hrlr 14


Fair hearing access to justice | immunity | act of state doctrine | inapplicable to grave breaches of human rights | See accountability & impunity – Habib v Commonwealth

of Australia

access to justice | procedure | delay | dismissal for minor failing

BONI & ORS V TOLUKUMA GOLD MINES LTD & ORS supreme court of justice papua new guineacannings, gabi and ellis jj 4 dec 2009 B sought damages for well over 1,000 villagers as a result of a one-tonne container of sodium cyanide falling from a helicopter while being transported to TGM’s gold mine. The National Court struck out B’s claim because an amended statement of claim was filed one day late. This delay was caused by the court office’s refusal to accept the document on the deadline date because the court file was unavailable. B appealed to the Supreme Court against the order striking out the claim.

In allowing the appeal, setting aside the order striking out B’s claim and ordering that the substantive proceedings be re-listed in the National Court, it was held that:

(1) B attempted to file the amended statement of claim within the prescribed time limit and this can be accepted as sufficient compliance with the relevant deadline.

1. Section 2(b) provides: ‘Everyone has the following funda-mental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.’

2. Section 2(b) provides: ‘Everyone has the following fun-damental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.’

3. Section 8 provides: ‘Everyone has the right to be secure against unreasonable search or seizure.’

4. Article 10 provides: ‘(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opin-ions and to receive and impart information and ideas with-out interference by public authority and regardless of fron-tiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formali-ties, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the inter-ests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

5. Article 8 provides: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspond-ence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the pro-tection of the rights and freedoms of others.’

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(2) The order setting the deadline for filing the amended statement of claim was not clear.

(3) The order setting the deadline did not specify that the claim would be struck out if the deadline was not complied with. Although the National Court did suggest that this would happen, the court retains discretion over such a decision. Furthermore, the judge himself stressed that courts should promote substantive hearings over pro-cedural dismissal of claims.

(4) The judge in the National Court unreasonably exercised his discretion in striking out B’s case for a minor procedural error when there were significant legal issues to be decided and attempts were made to comply with the order.

for the eighth appellant: mr a baniyamai; instructed by baniyamai lawyers for the remaining appellants: mr p fereaka; instructed by tiare lawyers for the first respondent: mr g poole; instructed by o’briens

[2009] PGSC 25; SC 1005

Full text of judgment at http://www.paclii.org/pg/cases/PGSC/2009/25.html

court martial | discriminatory treatment of homosexual supported refugee claim | See refugees – Smith v Canada (Minister of Citizenship and Immigration)

criminal proceedings | constitutional breaches by police | prosecution not rendered unconstitutional

MUGOYA KYAWA GASTER V ATTORNEY GENERAL constitutional court ugandamukasa-kikonyogo dcj, mpagi-bahigeine, 23 mar 2010twinomujuni, kitumba and byamugisha jja G was arrested and detained on 21 October 2008 at Kira Road Police Station. G made several allegations about the police conduct surrounding his arrest and detention, specifically that: (a) he was not informed immediately after his arrest of the reason for it and of his right to a lawyer of his choice; (b) he was denied access to a lawyer and doctor and the opportunity to inform his next of kin; (c) army officers recorded a charge and caution statement from him whilst he was in police custody, contrary to the rules of evidence; (d) his home and school were searched without warrant by about 40 armed soldiers; and (e) he was detained for longer than 48 hours. Subsequently, the charges were amended and G’s prosecution was taken over by the Director of Public Prosecutions

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(DPP). G challenged the ability of the DPP to prosecute him, on the basis that his arrest and detention involved several breaches of his constitutional rights, specifically under Articles 23(3),1 23(5)(a)&(b),2 27,3 28(1),4 28(3)(b)&(c)5 and 28(4).6 G argued that where a prosecution is founded on a constitutional violation it is not legitimate, and thus that his prosecution was illegitimate. AG disputed the constitutional breaches alleged by G. Further, AG argued that even if there were irregularities in the arrest and detention of G, his subsequent prosecution did not violate the Constitution because the DPP was carrying out his duty under Article 120(3)7 of the Constitution, G was charged for valid offences and the trial was fair. Further, AG submitted that G was at liberty to file a civil action for relief regarding the alleged violations.

In dismissing G’s petition, it was held that:

Article 120(3) of the Constitution empowers the DPP to institute, take over and continue, and discontinue criminal proceedings. Therefore, the DPP was acting within his constitutional mandate in taking over G’s prosecution and his actions in doing so do not contravene the Constitution. G’s prosecution was not ‘founded’ on violations of his constitutional rights and his prosecution was not illegitimate; rather, G was prosecuted lawfully. G is entitled to seek redress for the alleged violation of his rights in the appropriate court and therefore is not left without protection.

for the appellant: counsel not named for the respondent: ms nabakooza

[2010] ugcc 1

Full text of judgment at http://www.ulii.org/ug/judgment/constitutional-court/2010/1

delay | clock not stopped where charge withdrawn but later reinstated | interval between charge and trial was excessive | See remedies – Oatile v Attorney General

evidence | closed material procedure | use in civil claim for damages lawful

AL RAWI & ORS V THE SECURITY SERVICE & ORS high court of justice united kingdom(queen’s bench division, england and wales) 18 nov 2009silber j AR and six other individuals, who had been detained in various locations including Guantanamo Bay, sued SS and four other organs of the State for damages. AR claimed that SS’ acts or omissions caused or contributed to his detention and ill-treatment by for-eign authorities. AR claimed that he was subject to unlawful extraordinary rendition and

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to torture and inhuman and degrading treatment whilst detained. A preliminary issue arose as to whether it could be proper and lawful for a court to order a ‘closed material procedure’ (CMP)8 in a civil claim for damages.

AR argued that a CMP could not be used because (a) it would be inconsistent with estab-lished case law and principle; (b) it would be inconsistent with Public Interest Immunity (PII) law; (c) it would be inconsistent with certain provisions of the Civil Procedure Rules (CPR) and the Crown Proceedings Act 1947 (CPA); and (d) it would be unconstitutional as the court would be acting as legislator. SS argued that a CMP could be adopted because (a) such a course is supported by authority and (b) it is not inconsistent with the CPR or PII.

In determining that it could be proper and lawful for a court to order a closed material procedure in a civil claim for damages, it was held that:

(1) The use of a CMP in a civil claim for damages is not precluded by any authority. Rather, the case law shows that the use of a CMP and a special advocate is permitted, albeit ‘only in exceptional cases and as a last resort to ensure fairness’ (Shiv Malik v Manchester Crown Court [2008] EWHC 1362 at [99], Secretary of State for Home Department v Rehman [2003] 1 AC 153 at [31] and R v H and Others [2004] 2 AC 134 at [20] and [22] applied, and other cases containing similar statements considered).

(2) The use of a CMP is not inconsistent with the established law of PII.9 Previous cases allowing a CMP contain no suggestion that it could be inconsistent with PII (Rehman (above), R v Shayler [2003] 1 AC 247 and H and Others (above) considered); courts are clearly familiar with PII and yet have seen no barrier to developing CMP (A and Others v HM Treasury [2009] 3 WLR 25 considered); no case has been cited in which it was said that PII precludes the use of a CMP; and there is no reason of principle to suggest that a CMP infringes the principles of PII. Notably, whereas PII precludes the use of protected information by any party and thus could prevent the use of material unfavourable to the State, a CMP allows the special advocate to use such material to damage the State’s case. Claimants may thus be in a better position through use of a CMP.

(3) The use of a CMP is not prohibited by any provision of the CPR. All CPR obligations raised by AR have either (a) been complied with or (b) are not absolute and instead have qualifications which allow the use of a CMP. Furthermore, if a CMP is used it is incumbent on the courts to ensure that the claimant’s rights under the ECHR and common law are protected. Despite the fact that numerous courts have adopted CMPs it has never been suggested that their use contravenes the CPR (Rehman (above) and Roberts v Parole Board and Another [2005] 2 AC 738 considered). Similarly, it has never been suggested that the CMP offends any provision of the CPA and thus clearly the CMP is not inconsistent with the CPA.

(4) It can be lawful and is not unconstitutional for a court to order the use of a CMP. CMPs have been used in several cases and are thus ‘a firmly established principle of our legal system’ (Malik (above), A and Others (above) and AHK v Secretary of State for Home Department [2009] 1 WLR 2049 considered). In none of these cases has it been suggested that the court acted unconstitutionally. In addition, there has been much judicial development of civil procedure, such as freezing injunctions and

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search orders (The Mareva [1975] 2 Lloyds Law Reports 509 and Anton Pillar K.G. v Manufacturing Process Ltd [1976] 1 Ch 55 considered). Finally, the CMP can incorpo-rate safeguards for claimants and thus their common law rights can be protected.

for the first, second and fourth claimants: timothy otty qc, richard hermer qc and tom hickman; instructed by birnberg peirce & co for the third, fifth, sixth and seventh claimants: michael fordham qc and naina patel; instructed by birnberg peirce & co (third and fifth claimants), leigh day & co (sixth claimant) and christian khan (seventh claimant) for the defendants: jonathan crow qc, karen steyn, daniel beard and andrew o’connor; instructed by the treasury solicitor for the interveners liberty and justice: nigel pleming qc, eric metcalfe and corinna ferguson; instructed by liberty and justice

[2009] ewhc 2959 (qb)

Full text of judgment at http://www.bailii.org/ew/cases/EWHC/QB/2009/2959.html

evidence | hearsay | exclusion | sole or decisive basis for conviction not appropriate standard

R V HORNCASTLE & ORS supreme court united kingdomlord phillips, lady hale, lord brown, 9 dec 2009lord mance, lord neuberger, lord kerrand lord judge H was one of several individuals convicted of serious criminal offences in trials where witness statements were put before the jury without the witness attending to give live evi-dence, in line with the provisions in s 11610 Criminal Justice Act 2003 (CJA 2003). The wit-nesses did not attend trial because of either death (from causes unrelated to the offence) or fear, thus falling within ss 116(2)(a) and 116(2)(e) CJA 2003 respectively. H appealed to the Court of Appeal against his conviction, arguing that his rights under Article 611 of the European Convention on Human Rights (ECHR) were breached. He relied particu-larly on the European Court of Human Rights (ECtHR) case of Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1, in arguing that relying on the statement of a witness who was not present for cross-examination, where that statement constituted the ‘sole or decisive’ evidence against the accused, breached Article 6(1) and 6(3)(d) ECHR and that, as the evidence of the witness in his case who did not attend trial was decisive, there had been a violation of Article 6 in his case. The Court of Appeal held that Al-Khawaja was not applicable to H’s appeal and concluded that H had received a fair trial. H appealed to the Supreme Court.

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The principal issue for determination by the Supreme Court was whether a conviction based ‘solely or to a decisive extent’ on the statement of a witness whom the defendant had no chance of cross-examining necessarily infringed the defendant’s right to a fair trial under Articles 6(1) and 6(3)(d) ECHR. In deciding this issue, the court had to answer two main questions: (a) whether the regime enacted by Parliament in relation to the admis-sion of the evidence of an absent witness at a criminal trial would necessarily result in an unfair trial and, if not, (b) whether the ECtHR jurisprudence none the less required the court to apply that regime in a manner contrary to the intention of Parliament. The Court of Appeal answered both of these questions in the negative.

In dismissing the appeals and confirming that domestic law on hearsay is compatible with Article 6 ECHR, it was held that:

(1) Before the introduction of the ECHR, the common law hearsay rule addressed the requirement propounded in Article 6(3)(d) ECHR, i.e. that a defendant has the right to cross-examine the prosecution witnesses. Parliament has since implemented exceptions to the hearsay rule, on the basis that this is required in the interests of justice. Although this can mean that a defendant does not have the opportunity to cross-examine every live witness, the regime governing the admission of hearsay evi-dence contains numerous safeguards designed to protect the defendant. Principally these are: (a) the trial judge has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received (s 78(1) Police and Criminal Evidence Act 1984 considered); (b) hearsay evidence is only admissible in strictly defined circumstances and will not be admissible if it is possible for the witness to give live evidence (ss 114-136 CJA 2003 considered); (c) once the prosecution case is closed, the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance, the defendant’s conviction would be unsafe (s 125 CJA 2003 and R v Galbraith (1981) 1 WLR 103 considered); (d) the judge has to direct the jury on the dangers of relying on hearsay evidence; (e) the jury has to be satisfied of the defendant’s guilt beyond reasonable doubt; and (f) the defendant can appeal against a conviction where the aforementioned safeguards have not been complied with, and the appeal will be allowed unless it is established that, despite the failings, the conviction is safe. These safeguards render the application of the ‘sole or decisive rule’ in domestic courts unnecessary.

(2) There is no difference in principle between the application of the sole and decisive rule in relation to absent witnesses and its application in relation to anonymous wit-nesses, as each situation results in a potential disadvantage for the defendant. In rela-tion to anonymous witnesses, Parliament has decided that the question of whether evidence is sole or decisive is relevant to the question of whether it should be given anonymously but that there is no rule prohibiting the admission of such evidence (ss 4 and 5 Criminal Evidence (Witness Anonymity) Act 2008 considered).

(3) Whilst the jurisprudence of the ECtHR shows that the calling of live witnesses is strongly favoured, when determining whether there has been a breach of Article 6(3)(d) the court focuses not simply on whether there has been a deviation from the rule but on whether, even accounting for any deviation, the trial as a whole was fair (Grant

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v The Queen [2006] UKPC 2 considered). Relevant to this enquiry are any safeguards employed to protect the defendant’s interests. The ECtHR has accepted that fairness may require that the evidence of an absent witness should be admitted (Ferrantelli and Santangelo v Italy (1997) 23 EHRR 288, Trivedi v United Kingdom (1997) 89-A DR 136 and Artner v Austria (European Court of Human Rights, Application No. 13161/87, 25 June 1992, unreported) considered). In deciding whether the evidence of an absent witness should have been admitted, the ECtHR first considers whether or not such a course of action was justified (Doorson v The Netherlands (1996) 22 EHRR 330 consid-ered). The court has recognised that admission can be justified where the witness is too afraid to give evidence (Lucà v Italy (2001) 36 EHRR 807 and several other ECtHR cases considered). The court is also concerned with whether the evidence that was admitted was reliable (Doorson (above) considered).

(4) The jurisprudence shows that the ECtHR has accepted that some exceptions have to be made to the strict application of Article 6(3)(d) and thus that failure to comply with its requirements do not automatically result in a breach. However, the court has not explicitly stated that in exceptional circumstances a failure to comply with Article 6(3)(d) will not render a trial unfair. Instead, the court has used language that has tended to obscure that this is the true position (Kostovski v The Netherlands (1989) 12 EHRR 434 considered). Consequently, the manner in which the ECtHR has approved excep-tions to the rule has resulted in a jurisprudence that lacks clarity.

(5) The sole or decisive rule has been introduced into the ECtHR jurisprudence without discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law jurisdictions (R v Sellick [2005] EWCA Crim 651, Doorson (above) and several other domestic and European cases considered). The rule would create severe practical difficulties if applied to English criminal procedure. It is extremely difficult to determine whether or not a particular piece of evidence is ‘decisive’ (dissenting opinion of Judge van Dijk in Van Mechelen v The Netherlands (1997) 25 EHRR 647 considered) and thus it would be difficult for a judge to abide by a duty not treat a particular piece of evidence as decisive and almost impossible for an appeal court to determine whether a particular statement was the decisive basis of a conviction. Trying to instruct a jury to have regard to a witness statement as support-ing evidence but not decisive evidence would ‘involve them in mental gymnastics that few would be equipped to perform’. The only practical way to apply the rule would be as one of admissibility, where the judge would have to rule inadmissible any witness statement capable of proving ‘decisive’. If ‘decisive’ means ‘capable of making the difference between a finding of guilt and innocence’, then all hearsay evidence would have to be excluded.

(6) The sole or decisive test produces a paradox. It permits the court to have regard to evidence from an absent/anonymous witness if the support that it gives to the pros-ecution case is peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon. There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction but equally well there will be cases where the evidence in question is demonstrably reliable.

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(7) Parliament has concluded that there are methods other than the sole or decisive rule for protecting against the risk of unsafe convictions, as set out in the Criminal Justice Acts of 1988 and 2003 (and with regard to anonymous witnesses the Criminal Evidence (Witness Anonymity) Act 2008). An analysis of the ECtHR decisions shows that these alternative safeguards would have precluded convictions in most of the cases where a violation of Article 6(1) and (3)(d) was found. In particular the legis-lation does not permit the admission of the statement of a witness who is neither present nor identified. Where the witness is unavailable but identified, or present but anonymous, the respective Acts provide safeguards to protect against the risk that the use of the witness’ evidence will render the verdict unsafe and the trial unfair. The ECtHR cases suggest that in general our rules of admissibility provide the defendant with at least equal protection to that provided under the continental system.

(8) Before Al-Khawaja, there had been no case where the sole or decisive test had been applied so as to produce a finding of a violation of Article 6(1) and (3)(d) in a case where there had been justification for not calling a witness and where the evidence was demonstrably reliable. It is impossible to reconcile the test as propounded in Al-Khawaja with the statements of principle that the ECtHR has regularly made indicating that the fairness of a trial has to be assessed on a case-by-case basis, view-ing each trial as a whole, and that an inability on the part of a defendant to examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair. If applied rigorously, the test will in some cases result in the acquittal, or failure to prosecute, defendants where there is cogent evidence of their guilt. This will be to the detriment of their victims and will result in defendants being left free to add to the number of those victims.

(9) Provided that the regime governing the admission of hearsay evidence is rigorously applied, there will be no breach of Article 6 and, in particular, Article 6(3)(d), if a conviction is based solely or decisively on hearsay evidence. Therefore, it cannot be said that in H’s case the sole or decisive test should have been applied rather than the provisions of the CJA 2003. Those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims and society that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. Al-Khawaja does not establish that it is necessary to apply the sole or decisive rule in this jurisdiction.

[Editor’s note: In Al-Khawaja and Tahery v The United Kingdom [2011] ECHR 2127 the Grand Chamber accepted the Supreme Court’s approach in R v Horncastle as consistent with the ECHR.]

for the appellants (horncastle and blackmore): tim owen qc, john gibson and janet reaney; instructed by the johnson partnership solicitors for the appellants (marquis and graham): shaun smith qc and james beck; instructed by the johnson partnership solicitors

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for the respondent: david perry qc and louis mably; instructed by the crown prosecution service

[2009] uksc 14; [2010] ukhrr 1; [2010] 1 cr app r 17; [2010] hrlr 12; [2010] 2 all er 359; [2010] 2 ac 373; [2010]2 wlr 47; [2010] 1 cr app rep 17; [2010] 2 wlr 2


evidence | informer privilege | determining applicability | defence cannot attend hearing

R V BASI & ORS supreme court canadamclachlin cj, binnie, lebel, fish, abella, 19 nov 2009charron and rothstein jj B was one of three individuals charged with corruption, fraud and breach of trust in relation to the sale of British Columbia Rail’s freight operations by the provincial Government. In response to disclosure requests, the Crown supplied B with thousands of documents, including many that were fully or partially redacted. B applied to court for disclosure of non-redacted copies of the documents, but the Crown objected on the basis of informer privilege. The trial judge asked the Crown to substantiate its claim. The Crown contended that it could only do this through live testimony from a police officer and sought an in camera and ex parte hearing (‘the privilege hearing’) for this purpose. B objected to the privilege hearing being ex parte and submitted that defence counsel should be entitled to attend, subject to a court order and undertakings that any privileged infor-mation would not be disclosed to anyone, including B. The trial judge agreed and ordered accordingly. The Crown appealed under s 3712 of the Canada Evidence Act 1985 (CEA) but the Court of Appeal upheld the trial judge’s conclusion (Ryan JA dissenting). The Crown then appealed to the Supreme Court, maintaining that defence counsel should not be per-mitted to attend the privilege hearing. B cross-appealed, arguing that the Court of Appeal had no jurisdiction to hear the appeal as the trial judge did not make a ‘disclosure order’ within the meaning in s 37(1) CEA.

In allowing the appeal and dismissing the cross-appeal, it was held that:

(1) The trial judge did make a disclosure order and therefore the Court of Appeal did have jurisdiction to hear the appeal. The inevitable result of the trial judge’s deci-sion was to require the Crown to reveal to defence counsel information over which informer privilege was claimed. Given that defence counsel fall outside the ‘circle of privilege’, permitting them to access such information effectively constitutes disclo-sure of it (Mills v The Queen [1986] 1 SCR 863 at p 959 and s 37 CEA applied). The cross-appeal must therefore fail.

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(2) While everyone charged with a criminal offence in Canada is constitutionally entitled to full disclosure of all relevant material under the control of the Crown, that entitle-ment is neither absolute nor unlimited. Informer privilege, i.e. where a police officer guarantees confidentiality to a prospective informer in exchange for useful informa-tion, is one permissible limitation on the right. The privilege has been described as nearly absolute and it is safeguarded by a protective veil that will be lifted by judicial order only when the accused’s innocence is at stake. Accordingly, the trial judge does not have discretion over whether or not to grant informer privilege; rather, if the judge is satisfied, on the balance of probabilities, that the individual is a confidential informant then privilege must be granted (Named Person v Vancouver Sun 2007 SCC 43 at [19] applied). Whenever the issue of informer privilege arises, its existence must be determined by the court in camera and normally only the informer and the Crown may appear before the judge, although an amicus curiae may be used (Named Person v Vancouver Sun (above) at [48] considered).

(3) B has the right to make full answer and defence under s 713 of the Canadian Charter of Rights and Freedoms and that right is plainly engaged here (R v Stinchcombe [1991] 3 SCR 326 applied). However, this alone does not trigger an exception to informer privilege (R v Leipert [1997] 1 SCR 281 at [23]-[25] applied), which only yields when innocence is at stake.

(4) No one outside the circle of privilege may access information over which informer privilege is claimed until a judge determines that the privilege does not exist or that an exception applies. Therefore, the trial judge in this case erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the informant; defence counsel should not be permitted to attend the hearing in which the judge determines whether or not privilege applies. To hold otherwise would place defence counsel in an awkward and professionally undesirable position as it would ‘prevent frankness and fetter the free flow of information between lawyer and client’, thereby straining the relationship (R v G [2004] EWCA Crim 1368 at p 635 consid-ered).

(5) The accused’s right to be present at trial under s 650(1)14 of the Criminal Code does not incorporate a right to be present at a hearing to determine whether or not inform-er privilege applies (R v Pilotte (2002) 156 OAC 1 at [46] applied).

(6) The accused and defence counsel should only be excluded from a hearing to resolve a claim of informer privilege when the identity of the informant cannot be otherwise protected, and even then only to the necessary extent. The interest of accused per-sons in being present (or at least represented) in proceedings relating to the charges they face is significant. In order to protect accused persons’ interests in this regard, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions as to what occurs in their absence. Trial judges have broad discretion to craft appropriate procedures in this regard, for example inviting submis-sions on the scope of any proposed privilege or providing the defence with a redacted or summarised version of the evidence presented ex parte.

(7) The appeal is allowed. The case should be returned to the trial court to be proceeded with in accordance with the judgment of this court.

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for the appellant: william s berardino qc, janet l winteringham qc, michael sobkin and andrea n mackay; instructed by hunter litigation chambers, vancouver for the first respondent: p michael bolton qc and claire e hatcher; instructed by bolton & muldoon, vancouver for the second respondent: joseph j blazina and kevin g mccullough; instructed by mccullough blazina dieno & gustafson, victoria for the third respondent: joseph m doyle and erin d dance; instructed by johnson doricic doyle sugarman, vancouver for the intervener the director of public prosecutions of canada: w paul riley and françois lacasse; instructed by the public prosecution service of canada, vancouver for the intervener the attorney general of ontario: robert w hubbard and christopher webb; instructed by the attorney general of ontario, toronto for the intervener the canadian association of chiefs of police: greg preston and mark unchulenko; instructed by the edmonton police service, edmonton for the intervener the criminal lawyers’ association (ontario): anil k kapoor and lindsay l daviau; instructed by anil k kapoor, toronto

2009 scc 52; [2009] 3 scr 389

Full text of judgment at http://canlii.ca/t/26mxq

evidence | non-disclosure | prejudicial only where real possibility of a different outcome existed | See fair hearing – McInnes v Her Majesty’s Advocate (Scotland)

evidence | prosecution | statements to police should always be disclosed

MCINNES V HER MAJESTY’S ADVOCATE (SCOTLAND) supreme court united kingdomlord hope, lord rodger, lord walker, 10 feb 2010lord brown and lord kerr There was a fight inside a hotel whereby stewards ejected various persons, including M, his co-accuseds and the complainer, S. As soon as S was outside the hotel he was hit on the head and brought to the ground, where he was set upon. M and two others were con-victed of assaulting S to his severe injury, permanent impairment and the danger of his life, and of his attempted murder. The identity of the assailants was the crucial issue at trial. The case against M rested on the evidence of two stewards. The appeal was centred on the non-disclosure by HMA of statements made to the police by one of the stewards, P, regarding his partial identification of M as an assailant following identity parades.

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M appealed his conviction but the appeal court dismissed the appeal. M accepted that the issue was whether he had been denied a fair trial by reason of HMA’s failure to disclose the police statements but argued that the question was whether the disclosure could have made a difference to the outcome of the trial not whether it would have made a difference. The appeal court rejected this contention, holding that the test to be applied is whether the non-disclosure created a real risk of prejudice to the defence. M appealed to the Judicial Committee of the Privy Council on the issue of whether the appeal court applied the cor-rect test, and jurisdiction was subsequently transferred to the Supreme Court.15 Before the Supreme Court, HMA accepted that there had been a failure in the duty of disclosure during the trial. The question for the court was identification of the correct test for deter-mination of the appeal. The court was not required, having identified the correct test, to go on to determine whether that test had been correctly applied.16

In dismissing the appeal and determining that the appeal court did apply the correct test, it was held that:

(1) In a case concerning non-disclosure of evidence by the Crown, two questions arise and two separate tests should be applied to those questions. The first question is whether the withheld evidence is material which ought to have been disclosed. The test for this question is whether the evidence might have materially weakened the Crown’s case or materially strengthened the case for the defence (HM Advocate v Murtagh [2009] UKPC 36 at [11] applied). If so, then the failure to disclose is incompatible with Article 6(1)17 of the European Convention on Human Rights (‘the Convention’). Police statements from any witnesses on the Crown list must always be disclosed to the defence and thus HMA’s failure to do this was incompatible with S’s Article 6(1) rights (McDonald v HM Advocate [2008] UKPC 46 at [51] applied).

(2) The second question addresses the significance and consequences of the non-disclosure. A trial is not automatically unfair on account of non-disclosure and thus the Crown does not necessarily breach the Convention by continuing to prosecute following it. The question is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and as a consequence no miscarriage of justice occurred (Kelly v HM Advocate [2005] HCJAC 126 applied and s 106(3) of the Criminal Procedure (Scotland) Act 1995 con-sidered). The test for this question is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict had disclosure occurred.

(3) The ‘real risk of prejudice’ test applied by the appeal court requires expansion. The real issue is fairness. The question for the appeal court is whether, after taking full account of all the circumstances of the trial including the non-disclosure in breach of the appellant’s Article 6(1) right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome, i.e. if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence. However, although the appeal court’s description of the test was incomplete, it is clear from the judgment that the test the court actually applied was the correct one.

Per Lord Brown:

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(1) Only if a trial as a whole was unfair can the Crown properly be held to have acted in breach of Article 6 of the Convention so as to require that an appellant’s conviction be set aside. The question, therefore, is whether the non-disclosure of P’s statement made S’s trial unfair.

(2) The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This depends on whether the appeal court regards the non-disclosure as having denied the defence the real possibility of securing a different outcome. In a non-disclosure case such as this, an appeal should be allowed if the court decides that, had the defence been in a posi-tion to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion; otherwise the appeal should be dismissed.

(3) All police statements are disclosable (Advocate v Murtagh [2009] UKPC 36 consid-ered). However, it does not follow that, because a statement should have been dis-closed on this basis, a failure to disclose it involves a breach of the accused’s Article 6 Convention right to a fair trial. Where there is non-disclosure, a trial is only unfair if in fact disclosure might have harmed the Crown or helped the defence to such an extent that in retrospect the defence can be shown to have lost a real possibility of acquittal.

for the appellant: john carroll and moira mackenzie; instructed by mcclure collins solicitors for the respondent: paul mcbride qc and gordon balfour; instructed by the crown office and procurator fiscal service for the second respondent and intervener: the baron davidson of glen clova qc and mark lindsay; instructed by the office of the solicitor to the advocate general for scotland

[2010] uksc 7; 2010 slt 266; 2010 gwd 8-136; [2010] ukhrr 287


self-incrimination | interrogation through brain mapping | involuntary use unjustified

SELVI & ORS V STATE OF KARNATAKA & ANOR supreme court indiabalakrishnan cji and raveendran j 5 may 2010 Several individuals, including S, were involuntarily subjected to polygraph testing,18 narcoanalysis19 and/or brain mapping (via the Brain Electrical Activation Profile (BEAP) test)20 as part of the investigation into the crimes of which they were accused. They

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appealed to the Supreme Court against the use of these techniques, arguing that their involuntary administration (a) violated their rights against self-incrimination under Article 20(3)21 of the Constitution and (b) constituted an unreasonable restriction on the right to personal liberty enshrined in Article 2122 of the Constitution. SK defended the measures by highlighting their utility in punishing and preventing criminal activity, the duty on citizens to cooperate with criminal investigations and the potential for increased acquittals as well as convictions. SK contended that administration of the tests did not cause bodily harm, that the results themselves were not admitted but were instead used to locate further evidence and that the tests represented a welcome alternative to other ‘third-degree methods’ of interrogation.

In allowing the appeals and finding the forcible administration of all three tests to be unconstitutional, it was held that:

(1) The right against self-incrimination is an essential safeguard in criminal procedure. The right helps to ensure that statements made by an accused are both reliable and voluntarily made. Statements that are not made voluntarily are more likely to mislead the court and thus result in a miscarriage of justice, and so as a general rule such statements are not admissible as evidence. If involuntary statements were regularly admitted into court then investigators would have a strong incentive to compel such statements through coercion, threats, inducement or deception. The law should not incentivise the use of interrogation tactics that violate the dignity and/or bodily integ-rity of the subject. Therefore, ‘the right against self-incrimination is a vital safeguard against torture and other third-degree methods that could be used to elicit informa-tion’ and also serves as a check on police behaviour during the course of investiga-tions (dicta of Das Gupta J in State of Bombay v Kathi Kalu Oghad [1962] 3 SCR 10 at pp 43-44, dicta of Goldberg J in Murphy v Waterfront Commission [1964] USSC 136 at p 55 and other passages from domestic and international cases considered).

(2) Article 20(3) is not solely applicable to criminal trials; it also extends to pre-trial crimi-nal investigations (dicta of Jagannadhadas J in M.P. Sharma v Satish Chandra [1954] SCR 1077 at pp 1087-1088 and Nandini Satpathy v P.L. Dani [1978] INSC 82 applied). The right protects persons who have been formally accused of a crime, persons who are examined as suspects in criminal cases and witnesses who apprehend that their answers could expose them to criminal charges in the present or other cases (s 161 Code of Criminal Procedure 1973 (CrPC) and Nandini Satpathy v P.L. Dani (above) applied).

(3) If a statement is obtained by compulsion then its admission in a criminal trial vio-lates Article 20(3) of the Constitution. In addition, Article 20(3) is breached where compelled statements are used to discover further relevant evidence and this later evidence is admitted at trial (dicta of Jagannadhadas J in State of Bombay v Kathi Kalu Oghad (above) at pp 33-34 applied and s 27 Evidence Act 1872 considered). However, if compelled statements are simply used to corroborate facts or materials already known to investigators then Article 20(3) is not engaged, for example compulsorily obtaining a handwriting sample to see whether it matches handwriting in a document already in the police’s possession. In addition, the compulsory extraction of physical evidence (such as fingerprints and blood, saliva or semen samples) lies outside the protection

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afforded by Article 20(3).

(4) Evidence obtained by using the narcoanalysis technique clearly amounts to testi-mony, as the drug induces the subject to make statements. Therefore, where subjects are forced to submit to this technique the result is compelled statements whose admission in a criminal trial would lead to a violation of Article 20(3). The position is the same for evidence obtained through polygraph and BEAP testing; such evidence is testimony and is not comparable to physical evidence which may be compulsorily obtained (ss 53 and 54 Code of Criminal Procedure 1973, Explanation to ss 53, 53-A and 54 of the Code of Criminal Procedure 1973, State of Bombay v Kathi Kalu Oghad (above), M.P. Sharma v Satish Chandra (above) and other case law and academic lit-erature considered). Even though the process of undergoing a polygraph or BEAP test is not the same as explicitly making an oral or written statement, the consequences are similar: by making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which would otherwise not have become available to the investigators.

(5) Consequently, where a subject is compelled to submit to narcoanalysis, polygraph or BEAP testing then admission of evidence obtained as a consequence of such test-ing (whether directly or through further investigation) in a criminal trial violates the Article 20(3) rights of the subject. However, Article 20(3) is not engaged where the subject consents to testing. It is also not applicable where the subject is compelled to undergo testing but either (a) this is in the course of civil proceedings or (b) does not subsequently face criminal charges.

(6) The right to personal liberty under Article 21 of the Constitution includes several dimensions, including the right to privacy, the right not to be subjected to cruel, inhu-man or degrading treatment and the right to a fair trial. The use of the impugned techniques violates the standard of ‘substantive due process’ required for restraining personal liberty and thus breaches Article 21.

(7) The right to privacy intersects with the right against self-incrimination in Article 20(3). A distinction must be drawn between privacy in a physical sense and the privacy of mental processes. Whilst the police are legally empowered to extract bod-ily substances and subject individuals to medical examination, these powers do not extend to the forcible extraction of testimony (Sharda v Dharampal (2003) 4 SCC 493 distinguished and several other domestic and international cases considered). An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, forcing persons to submit to any of the three impugned tests violates the right to privacy protected by Article 21.

(8) Compulsory administration of the impugned tests constitutes cruel, inhuman or degrading treatment contrary to Article 21. Although their administration does not necessarily cause physical pain or suffering, it is quite conceivable that it could cause mental pain or suffering or that the test results could lead to the subject being physically abused. Mental trauma could arise from (a) realising the consequences of revelations obtained via the tests, (b) threats by the police to administer the tests or

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(c) agreeing to take the tests in return for release or dropped charges only to discover that such was an empty promise. Forcible intrusion into a person’s mental processes is ‘an affront to human dignity and liberty, often with grave and long-lasting con-sequences’ (Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988) principles 6 and 21 applied, Universal Declaration of Human Rights 1948 Article 5, International Covenant on Civil and Political Rights Article 7 and various other provisions from international treaties considered).

(9) It has been established that investigators are not permitted to compel individuals to submit to the impugned tests. However, even if this were allowed, such practice would breach the right to a fair trial under Article 21. Firstly, the involuntary admin-istration of the tests may lead to a situation in which legal advice becomes ineffective (D.K. Basu v State of West Bengal AIR 1997 SC 610 considered). Secondly, investigators may not disclose the results of the tests to the subject and, although the prosecution is obliged at trial to supply copies of all incriminating materials, the outcome may be that the defence is impeded in presenting a meaningful defence. Thirdly, literature and case law casts doubt on the reliability of the three impugned techniques (numer-ous cases (mainly from the USA and Canada) and scientific literature considered) and the use of results obtained from them thus conflicts with the standard of proof of beyond reasonable doubt applicable in criminal trials. Fourthly, questions have been raised about the credibility of expert evidence relating to the tests, and fifthly the scientific nature of the tests could exert influence on the judge and prejudice him in determining the guilt of the accused.

(10) In light of these conclusions, no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or in any other situation. There is, nonetheless, scope for voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safe-guards are in place. However, even when the subject has given consent to undergo any of the tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses; the only evidence that can be admitted following voluntarily administered tests is independent evi-dence located as a consequence of the information obtained, in accordance with s 27 Evidence Act 1872.

(11) The National Human Rights Commission’s Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused 2000 should be strictly adhered to and similar safeguards should be adopted for conducting narcoanalysis and BEAP tests.

for the petitioners: mr rajesh mahale, mr manoj goel, mr santosh paul and mr harish salve for the respondents: mr sanjay hegde (for the state of karnataka), mr goolam e vahanvati (the solicitor general of india), mr anoop g choudhari (for the union of india) and mr t r andhyarujina (for the central bureau of investigation)

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[2010] insc 340


self-incrimination | interrogation through narcoanalysis | involuntary use unjustified | See fair hearing – Selvi & Ors v State of Karnataka & Anor

self-incrimination | interrogation through polygraph testing | involuntary use unjustified | See fair hearing – Selvi & Ors v State of Karnataka & Anor

1. Article 23(3) provides: ‘A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restric-tion or detention and of his or her right to a lawyer of his or her choice.’

2. Article 23(5)(a)&(b) provides: ‘Where a person is restricted or detained— (a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention; (b) the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person.’

3. Article 27 provides: ‘No person shall be subjected to— (a) unlawful search of the person, home or other property of that person; or (b) unlawful entry by others of the premises of that person. (2) No person shall be subjected to interfer-ence with the privacy of that person’s home, correspond-ence, communication or other property.’

4. Article 28(1) provides: ‘In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an inde-pendent and impartial court or tribunal established by law.’

5. Article 28(3)(b)&(c) provides: ‘Every person who is charged with a criminal offence shall— (b) be informed immediately, in a language that the person understands, of the nature of the offence; (c) be given adequate time and facilities for the preparation of his or her defence.’

6. Article 28(4) provides: ‘Nothing done under the authority of any law shall be held to be inconsistent with—(a) clause (3)(a) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts; (b) clause (3)(g) of this article, to the extent that the law imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.’

7. Article 120(3) provides: ‘The functions of the Director of Public Prosecutions are the following— (a) to direct the police to investigate any information of a criminal nature and to report to him or her expeditiously; (b) to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial; (c) to take over and continue any criminal proceedings insti-tuted by any other person or authority; (d) to discontinue at any stage before judgment is delivered, any criminal pro-ceedings to which this article relates, instituted by himself or herself or any other person or authority; except that the

Director of Public Prosecutions shall not discontinue any proceedings commenced by another person or authority except with the consent of the court.’

8. The parties agreed on a definition of ‘closed material procedure’ as follows: ‘A closed material procedure means a procedure in which: (a) a party is permitted to (i) comply with his obligations for disclosure of documents, and (ii) rely on pleadings and/or written evidence and/or oral evi-dence without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as “closed material”); and (b) disclosure of such closed mate-rial is made to Special Advocates and, where appropriate, the court; and (c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest. For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detec-tion and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.’

9. The public interest immunity test is: ‘The public inter-est which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material […] but once the former public interest is held to outweigh the latter, the evidence cannot in any cir-cumstances be admitted. It is not a privilege which may be waived […] by the Crown […] or by anybody else.’ (R v Lewes Justices ex parte Secretary of State for the Home Department [1973] AC 388, 407)

10. Section 116 provides: ‘(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evi-dence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably prac-ticable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably prac-ticable to take to find him have been taken; (e) that through

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fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) “fear” is to be wide-ly construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court consid-ers that the statement ought to be admitted in the interests of justice, having regard— (a) to the statement’s contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropri-ate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (spe-cial measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances. […]’

11. Article 6 provides: ‘(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a rea-sonable time by an independent and impartial tribunal estab-lished by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend him-self in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’

12. Section 37 provides: ‘(1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. (1.1) If an objec-tion is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act. (2) If an objection to the dis-closure of information is made before a superior court, that court may determine the objection. (3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be deter-mined, on application, by (a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdic-tion, in any other case. (4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the court having

jurisdiction to hear the application considers appropriate in the circumstances. (4.1) Unless the court having jurisdic-tion to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public inter-est, the court may authorize by order the disclosure of the information. (5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information. […]’

13. Section 7 provides: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of funda-mental justice.’

14. Section 650(1) provides: ‘Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.’

15. By virtue of s 40 and sch 9 Constitutional Reform Act 2005.

16. By virtue of s 124(2) Criminal Procedure (Scotland) Act 1995, as amended by Scotland Act 1998 (Consequential Modifications) (No 1) Order 1999 (SI 1999/1042).

17. Article 6(1) provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’

18. Polygraph testing involves monitoring the physiological responses of subjects when they are asked questions, in order to test the credibility of their answers (i.e. ‘lie detector’ tests).

19. Narcoanalysis is a procedure involving the intravenous administration of sodium pentothal, which causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information.

20. The Brain Electrical Activation Profile test is a process of detecting whether an individual is familiar with certain infor-mation (such as that related to a crime) by way of measuring activity in the brain that is triggered by exposure to selected stimuli. The technique allows the examiner to ascertain wheth-er the subject recognised stimuli to which he/she was exposed.

21. Article 20(3) provides: ‘No person accused of any offence shall be compelled to be a witness against himself.’

22. Article 21 provides: ‘No person shall be deprived of his life or personal liberty except according to procedure estab-lished by law.’

Family life care | refusal to pay family members was discrimination based on family status | See disability – Atkinson & Ors v Ministry of Health

children | custody | parents living apart | equal time parenting order | practicability must be considered | See children – MRR v GR

children | custody | relocation | maintaining contact with both parents | parental freedom of movement must yield to child’s best interests | See children

– B v K

children | residence order | welfare was paramount consideration | See children – In Re B (A Child)

extradition | impact was proportionate

NORRIS V GOVERNMENT OF UNITED STATES OF AMERICA supreme court united kingdomlord phillips, lord hope, lord rodger, 24 feb 2010lady hale, lord brown, lord mance, lord judge,lord collins and lord kerr

The extradition of N, a British national, was sought by the USA so that he could be tried for criminal offences under US law relating to a price-fixing conspiracy that he was involved in as Chief Executive Officer of Morgan Crucible plc (‘Morgan’). There is a bilateral extradition treaty between the USA and the UK. Originally, the charges against N were one count of price-fixing and three subsidiary counts of obstruction of justice. N had challenged his proposed extradition on the grounds that his conduct was not criminal under English law and this challenge reached the House of Lords (Norris v Government of the United States of America [2008] UKHL 16). His argument had succeeded in relation to the price-fixing charge but not the obstruction of justice charges, and the House of Lords remitted the matter back to the District Judge to reconsider whether extradition should be ordered solely for the subsidiary offences. The District Judge held that extradition should still be ordered and this conclusion was affirmed by the Divisional Court. N appealed to the Supreme Court arguing that his extradition would breach Article 81 of the European Convention on Human Rights (ECHR), i.e. the right to respect for private and family life.

At the time of hearing N was 66 years old and had a wife, children and grandchildren in the UK. N suffered from both physical and mental ill-health and his wife suffered from significant mental health problems. N’s wife alleged that her psychiatric condition would prevent her from relocating to the USA should N be imprisoned there. It was common ground between the parties that N’s extradition would interfere with his rights under Article 8 and that any interference with these rights would be in accordance with law,

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namely the Extradition Act 2003. The critical issue for the Supreme Court was whether the interference was ‘necessary in a democratic society […] for the prevention of disorder or crime’, involving application of the proportionality test. N accepted that only excep-tional circumstances would justify refusal of extradition on the grounds that it involves disproportionate interference with Article 8 rights. However, N argued that this does not represent a legal principle and that the lower courts erred in holding that an individual resisting extradition on Article 8 grounds must demonstrate exceptional circumstances before extradition will be refused.

In dismissing the appeal and confirming that N’s extradition may proceed, it was held that:

(1) There can be no absolute rule that any interference with Article 8 rights as a conse-quence of extradition will be proportionate. However, the public interest in extradi-tion carries great weight: it is critically important in the prevention of disorder and crime that persons reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity.

(2) It is not wrong for the court, when approaching the question of proportionality, to apply a ‘categorical assumption’ about the importance of extradition in general. Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. Individual human rights may prevail over the public interest in extra-dition, but the interference with such rights would have to be extremely serious for this to occur. Only ‘some quite exceptionally compelling feature or combination of features’ could justify a conclusion that the interference with family life occasioned by extradition is disproportionate to the objective that extradition serves (Soering v United Kingdom (1989) 11 EHRR 439, Launder v United Kingdom (1997) 25 EHRR CD67 and numerous other European and domestic judgments considered). Therefore, unless such feature(s) exist, the interference with Article 8 rights occasioned by extradition will be proportionate.

(3) Instead of saying that interference with Article 8 rights can only outweigh the impor-tance of extradition in exceptional circumstances, it is more accurate to say that the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. Judges commit no error if part of their reasoning in this type of case involves considering how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition.

(4) The gravity of the offence(s) for which extradition is sought may be of relevance to the issue of proportionality in the context of an Article 8 challenge to extradition. Usually the nature of the offence will have no bearing on the extradition decision but, if the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime, and the significance of this will depend upon the gravity of the offence (Soering (above) and Raidl v Austria (1995) 20 EHRR CD 114 considered).

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(5) When considering the impact of extradition on Article 8 rights, the family unit has to be considered as a whole and each family member has to be regarded as a victim (Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 applied). Indeed, the effect of extradition on innocent members of the extraditee’s family is a particularly cogent consideration for courts in determining whether extradition would breach Article 8.

(6) Extradition proceedings should not become an occasion for debate about the most convenient forum for criminal proceedings. The possibility of bringing criminal proceedings in this jurisdiction would rarely, if ever, be capable of tipping the scales against extradition. Unless the scales are finely balanced, judges should not enter into an enquiry as to the possibility of prosecution in this country (Soering (above), R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin) and R (Bary) v Secretary of State for the Home Department [2009] EWHC 2068 (Admin) considered).

(7) The obstruction of justice charges against N are very serious. The public interest in the prevention of crime would be seriously damaged if N’s Article 8 rights rendered him immune from extradition. Only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to this public interest and such effects do not exist in this case. The delay caused by N’s efforts to avoid extradi-tion to the US has increased the severity of the consequences of extradition on his family life, but this does not undo the justification that exists for that interference. The appeal must therefore be dismissed.

Per Lord Hope:

(1) Exceptionality is not a legal test and it would be wrong to require an individual to prove exceptional circumstances before s/he could succeed in arguing that extradition would violate his or her Article 8 rights. Such an approach would favour maintain-ing the integrity of the system over focusing on the rights of the individual, the latter being necessary in determining issues of proportionality. In extradition cases, as with other types of case, there must be a careful examination of the way the process will interfere with the individual’s Article 8 rights.

(2) The public interest in giving effect to a request for extradition is a constant factor and a powerful consideration to which great weight must be attached. The aspects of Article 8 rights that will always be interfered with where criminal proceedings are brought will carry very little, if any, weight in making a decision on whether extra-dition infringes Article 8 (Massey v United Kingdom [2003] ECHR 710 considered). Separation of the person from his family life and the distress and disruption that will be caused is inevitable in all extradition cases.

(3) In this case, the only feature that could be considered as ‘exceptionally compelling’ and not inherent in all extradition cases is the delay resulting from N’s extradition challenges; otherwise the issues raised simply involve questions of degree. The delay has caused additional hardship, and if the charges were less severe this might have been sufficient to tip the balance in N’s favour. However, the charges are serious and thus there are no grounds for refusing N’s extradition.

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Per Lord Brown:

It is important to understand the differences between the public interest in ‘the preven-tion of disorder or crime’ in (a) deportation cases involving the expulsion of migrants following criminal conviction(s) and (b) extradition cases (Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2007) 45 EHRR 14 considered). In the for-mer type of case, those invoking Article 8 rights have already been punished for their crimes, and decisions to expel relate to a state’s right to regulate the entry and expulsion of aliens and the interest in deterring immigrants from crime. In the latter type of case, those invoking Article 8 rights have not yet been tried for their alleged crimes and thus the public interest is more compelling. Section 872 of the Extradition Act is designed for use in the occasional ‘foreign’ case where it is usually rights under Article 23 or 34 of the ECHR that are at stake.

Per Lord Mance:

(1) The public interest in extradition is stronger than the public interest in both (a) enforcing immigration control in respect of failed asylum seekers or over-stayers who have developed family ties within the UK, and (b) deporting aliens who have been convicted of criminal offences.

(2) The use of formulations which suggest that any person seeking to invoke Article 8 to avoid extradition must establish, for example, ‘exceptional circumstances’ or ‘strik-ing and unusual facts’ can be problematic, as these may be read as imposing a legal threshold. In fact, the situation involves the balancing of two competing interests, the public and the private, as required by the ECHR case law and s 87 of the Extradition Act (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 2, Dickson v United Kingdom (2007) 46 EHRR 927 and S v United Kingdom (2009) 48 EHRR 50 considered). In using such formulations courts are simply highlighting that the number of individuals successfully invoking Article 8 to resist extradition will be a very small minority of potential extraditees.

(3) However, to avoid these problems, the preferable course is to approach Article 8 argu-ments by (a) identifying the relevant facts and on that basis assessing the force of, and then weighing against each other, the considerations pointing in the particular case for and against extradition, and (b) when addressing the nature of the consid-erations which might outweigh the general public interest in extradition to face trial for a serious offence, doing so in terms which relate to the exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case. However, this is not to say that a judg-ment which refers to a need in practice for ‘exceptional circumstances’ or ‘striking and unusual facts’ is necessarily flawed.

(4) What matters is whether, as a result of whatever formula has been adopted, the adju-dicative exercise has been distorted to such an extent that the outcome of the case is undermined. In this case, there is no doubt that balancing the public and private interests involved leads to the conclusion that N should be extradited.

Per Lord Collins:

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In this case the balance between the public interest in the prevention of disorder or crime and the individual’s Article 8 rights has to be struck in the context of a bilateral extradi-tion treaty providing for the surrender of persons alleged to have committed extraditable crimes. It is clear that there is a strong public interest in international co-operation for the prevention and punishment of crime, and the public interest implementation of extradi-tion treaties is an extremely important factor in the assessment of proportionality.

Per Lord Kerr:

(1) N has argued that the importance to be attached to the need for an effective extradi-tion system should be assessed only by reference to the particular circumstances of an individual’s case, but this is incorrect. Whilst the details of a particular case must obviously be taken into account, it is necessary to recognise the general importance in maintaining a comprehensive charter for extradition. The question cannot be con-fined to an inquiry as to the damage that an individual case would do to the system of extradition; it must be approached on a broader plane.

(2) The importance of preserving an effective system of extradition is such that it will in almost every circumstance outweigh any Article 8 argument. This merely reflects the expectation of what will happen; it does not erect an exceptionality hurdle (AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 at [31] considered).

for the appellant: jonathan sumption qc and martin chamberlain; instructed by white & case llp for the respondent: david perry qc and louis mably; instructed by the crown prosecution service for the intervener liberty: richard hermer qc, joseph middleton and alex gask; instructed by liberty

[2010] uksc 9; [2010] 2 all er 267; [2010] 2 wlr 572; [2010] lloyd’s rep fc 325; [2010] 2 ac 487


marriage | breach of age restriction | bride to remain with parents until age of majority | See children – Association for Social Justice & Research v Union of India & Ors

marriage | divorce | maintenance | muslim woman | claim possible until re-marriage | See women – Shabana Bano v Imran Khan

marriage | women | bar on continued employment afterwards unjustified but constitutional | See equality – Johnson and Balwant v The Attorney General of Trinidad and Tobago

296

family life

7 CHRLD

sentencing | pregnant woman | suspended sentence more appropriate

REGINA V MALASA high court solomon islandsnaqiolevu j 1 apr 2010 M was convicted of seven counts of forgery and 53 counts of obtaining benefit by false pre-tences, contrary to ss 34(1) and 308(a) of the Penal Code respectively. M was sentenced to three years imprisonment. Immediately before the sentence was handed down, the court was advised that M was three months pregnant. M appealed against the sentence, arguing that the lower court failed to take adequate account of the fact that she was pregnant and that the sentence was manifestly excessive in the circumstances, taking into account the effect of a mother’s incarceration on her child, the isolated nature of M’s detention given the lack of other prisoners in the facility and the fact that M was a first-time offender. The Crown argued firstly that M’s delay in appealing meant that the appeal should not be heard, and secondly that the sentence was appropriate, as the lower court imposed a term within the accepted range and took into account that M was a first-time offender and pregnant.

In allowing the appeal and substituting the sentence for two years imprisonment sus-pended for two years, it was held that:

(1) M has shown ‘good cause’ justifying an extension of time for the filing of her appeal. Therefore the Crown’s delay argument fails.

(2) The High Court will only interfere with the sentence imposed by a lower court if it is wrong in principle, which it is in this case. The lower court did not deal adequately with the issue of M’s pregnancy in sentencing; rather, it simply made a cursory remark that assumed the existence of appropriate facilities within the prison. In actu-al fact, the facilities are not conducive to bringing up a child (Ashley v Regina [2006] SBHC 129 considered and Pokana v Regina [2008] SBHC 99 distinguished). Given the imminent birth of the child, a short, sharp sentence would have been appropriate, even taking account of the nature and seriousness of the offence and the amount of money involved.

(3) In this case, a custodial sentence is appropriate given the nature and seriousness of the offence. However, there are compelling reasons to impose a shorter sentence and thus M is sentenced to two years imprisonment suspended for two years.

for the appellants: mr p cavanagh and mr gray for the crown: mr j seuika

[2010] sbhc 8; hcsi-crc 84 of 2010

Full text of judgment at http://www.paclii.org/sb/cases/SBHC/2010/8.html

297

family life

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social security | applicant with outstanding application for indefinite leave to remain | refusal having effect of forcing departure unjustified

BIRMINGHAM CITY COUNCIL V CLUE court of appeal (civil division, england and wales) united kingdomdyson and etherton ljj and sir scott baker 29 apr 2010 C was a Jamaican national. Her youngest daughter, S, was born in Jamaica in 1994. In December 2000 C and S were granted leave to enter the UK as visitors for six months, in order to visit C’s aunt. At the expiry of the six-month period, C applied for leave to remain as a student but the application was refused and a subsequent appeal was dismissed in March 2003. From 2004 to 2006 C had three more children in the UK fathered by a British citizen. Following from the dismissal of her appeal in March 2003, no steps were taken to remove C or her children. The father of the three youngest children supported the family until 2007, when his relationship with C broke down. In October 2007 C made an application to the UK Border Agency (UKBA) on behalf of herself and her children for indefinite leave to remain in the UK, on the basis that S had been living in the UK for more than seven years. C and the children returned to live with C’s aunt until March 2008 and C then applied to BCC for assistance, before her application to UKBA had been determined. BCC decided that it would not exercise its power under s 17 of the Children Act 1989 to provide support and accommodation for C and her children, since they were able to return to Jamaica where they could continue to enjoy family life and accordingly a refusal to provide support and accommodation would not breach their rights under Article 85 of the European Convention on Human Rights (ECHR). BCC said it would pro-vide assistance to the family to enable them to travel to Jamaica and might also provide a resettlement grant to assist them to settle there if necessary and appropriate.

C sought judicial review of this decision and the High Court held that BCC had erred in law in failing to take account of policy DP 5/96 (issued by the Secretary of State for the Home Department (SSHD)) and the presumption to which it gave rise, namely that, where a child has been resident in the UK for seven years, indefinite leave to remain should be granted in all but exceptional cases. BCC appealed to the Court of Appeal.6

In dismissing the appeal and quashing the assessment made by BCC in relation to the claim for assistance by C and her children, it was held that:

(1) There is a fundamental difference between the social services functions of a local authority and the immigration functions of SSHD. The former entails decisions on whether to grant to a person health, education and/or social services, whilst the lat-ter involves determining whether or not a person should be allowed to remain in the UK to take advantage of those services (dicta of Hale LJ in R v Wandsworth Borough Council ex p O [2000] 1 WLR 2539 at p 2557C applied). It is true that, as a result of s 3 of the Nationality, Immigration and Asylum Act 2002 (NIAA), local authorities are required to make an assessment of immigration status in certain respects (e.g. deter-mining whether a person is in breach of immigration laws). However, it would be contrary to the division of functions provided by Parliament to require local authori-ties to decide for the purposes of s 3 NIAA whether a non-asylum-seeking applicant

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family life

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to whom para 6 NIAA does not apply is entitled to leave to remain. That question is for SSHD to decide in accordance with immigration rules and policies.

(2) Local authorities should assume that if, by denying assistance, they require a person to return to his country of origin, then that person’s application for leave to remain in the UK will be treated by SSHD as withdrawn. The duty imposed on local authorities to act so as to avoid a breach of an applicant’s human rights does not, save in hopeless or abusive cases, require or entitle them to effectively determine applications for leave to remain by such persons by making those applications impossible to pursue (R (Kimani) v Lambeth Borough Council [2003] EWCA Civ 1159 distinguished and R (M) v Islington Borough Council [2004] EWCA Civ 235 applied). Local authorities must be satisfied that an application for leave to remain is not ‘obviously hopeless or abusive’ (e.g. where it is merely a repetition of an already rejected application) but, such cases aside, where a local authority is faced with an application for assistance pending the determination of an arguable application for leave to remain on ECHR grounds, that authority should not refuse assistance where this would have the effect of requiring the person to leave the UK and thereby forfeit his/her claim (R (AW, DAY) v Croydon LBC [2005] EWHC 2950 (Admin) at [74]-[76], R (PB) v Haringey LBC [2006] EWHC 225 (Admin), Ciliz v The Netherlands [2000] 2 FLR 469 and other UK and European jurisprudence applied).

(3) Where a person (a) is unlawfully present in the UK,7 (b) is destitute and would (apart from sch 3 NIAA) be eligible for state assistance,8 and (c) has made an application to SSHD for leave to remain which expressly or implicitly raises grounds under the ECHR, the finan-cial constraints of a local authority are irrelevant in deciding whether or not to provide that person with assistance. If this was not the case, a person’s application for leave to remain would, in effect, be dependent on the budgetary priorities of any particular local authority as opposed to the immigration policy considerations relevant to SSHD. This is unfair and arbitrary: ‘the disposal of applications for leave to remain should not depend on the vaga-ries of the budgetary considerations of local authorities’. Different considerations apply where the person who is applying for assistance from the local authority does not have an outstanding application for leave to remain; in that situation, the local authority is entitled to have regard to its budget in deciding whether an interference with a person’s Article 8 rights would be justified and proportionate within the meaning of Article 8(2). However, local authorities may not invoke Article 8(2) by reference to budgetary considerations and the rights of others if the effect of doing so will be to require an applicant to return to his country of origin and thereby forfeit his claim for indefinite leave to remain.

(4) Despite the care with which it was conducted, the assessment by BCC in C’s case was unlawful. BCC did not take account of C’s outstanding application for leave to remain, which was clearly not abusive or hopeless. In any event, the whole emphasis of the assessment was on the issue of respect for the right to family life and did not consider the right to private life (including relationships and social, cultural and family ties in the UK) which is also a part of Article 8 ECHR (Uner v The Netherlands (2007) 45 EHRR 14 considered). There was no recognition of the fact that S had been in the UK for more than seven years and that she was entitled to the seven years’ concession in DP 5/96. There is no indication that BCC recognised that to require C and her family to return to Jamaica would interfere with the family’s right to private life or that they understood that the private life rights of children who were born on the UK or came here at an early age

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family life

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were of particular weight. The focus of the assessment was simply on the right to family life and whether that family life could be maintained in Jamaica. The error did not lie in BCC’s failure to take account of the reasons which underlay the seven years’ policy; rather, that policy was a relevant factor for SSHD to take into account (NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906 distinguished).

Observations

The facts of this case highlight the problems caused for local authorities by delays on the part of UKBA in dealing with applications for leave to remain by persons in the position of C and her family. However, recent developments will go some way to addressing these problems: the SSHD has outlined plans to improve the situation and the UKBA is now subject to s 55(1) of the Borders, Citizenship and Immigration Act 2009, which requires SSHD to make arrangements to ensure that immigration functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.

for the appellant: mr jonathan cowen; instructed by birmingham city council for the respondent: mr stephen knafler qc and ms nadine finch; instructed by public law solicitors for the interested party the secretary of state for the home department: mr jonathan moffett; instructed by the treasury solicitors for the intervener shelter: mr simon cox; instructed by shelter

[2010] ewca civ 460; [2011] 1 wlr 99; [2010] ptsr 2051; [2010] blgr 485

Full text of judgment at http://www.bailii.org/ew/cases/EWCA/Civ/2010/460.html


2. Section 87 provides: ‘(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person’s extradition would be com-patible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.’

3. Article 2 provides: ‘(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from

unlawful violence; (b) in order to effect a lawful arrest or to pre-vent the escape of a person lawfully detained; (c) in action law-fully taken for the purpose of quelling a riot or insurrection.’

4. Article 3 provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’


6. In October 2009 C and her family were granted indefi-nite leave to remain in the UK by UKBA. The appeal thus became of academic interest only, but both C and BCC wished it to proceed on the ground that the decision had relevance for a significant number of other cases.

7. Within the meaning of sch 3 para 7 Nationality, Immigration and Asylum Act 2002.

8. Of the kind listed in sch 3 para 1 Nationality, Immigration and Asylum Act 2002.

300

housing

7 CHRLD

Housing basic services | sanitation and lighting | dependence on decision on upgrade to formal township | delay unjustified

NOKOTYANA & ORS V EKURHULENI METROPOLITAN MUNICIPALITY & ORS constitutional court south africamoseneke dcj, van der westhuizen, cameron, 19 nov 2009mokgoro, ngcobo, nkabinde, o’regan,sachs and skweyiya jj

N, a resident of the Harry Gwala Informal Settlement (‘the Settlement’), instituted these proceedings against EMM regarding a dispute as to the existence of basic services, the Settlement being located within EMM’s jurisdiction. N argued that EMM was obliged to provide the Settlement with (a) one ‘ventilated improved pit latrine’ (‘VIP latrine’) per household to replace their existing pit latrines and (b) high-mast lighting to enhance safety and access by emergency vehicles. N relied on s 261 of the Constitution, provid-ing for a right of access to adequate housing, along with ss 2,2 7,3 10,4 395 and 1736 of the Constitution and Chapters 127 and 138 of the National Housing Code (NHC).

In August 2006 EMM submitted a proposal to the Member of the Executive Council for Local Government and Housing of the Province of Gauteng (MEC) to upgrade the Settlement to a formal township under Chapter 13 of the NHC. This proposal was still awaiting a decision three years later. Formal township status would mean that the Settlement would be automatically entitled to the services that N claimed. N argued that, pending MEC’s final decision, EMM was required to provide the Settlement with these services on an interim basis. EMM contended that, under the terms of the NHC, until a decision was made as to whether to upgrade the Settlement to a township, they could not provide basic services that would require extensive capital outlay. Moreover, it argued that the obligation to provide certain services in the case of an emergency did not arise.

In the High Court N had claimed for communal water taps and refuse removal in addition to the VIP latrines and high-mast lighting. EMM accepted that it was obliged to provide the former services and thus the High Court ordered it to provide them immediately. The High Court went on to find that Chapter 12 of the NHC did not apply as no emergency housing requirements were present. Moreover, it held that Chapter 13 of the NHC would only apply once it was decided to upgrade the Settlement to a township. It therefore rejected N’s claims regarding sanitation and lighting. N appealed to the Constitutional Court seeking provision of these services.


(1) New evidence presented by both parties to the Constitutional Court will not be con-sidered and instead the case will be decided on the evidence before the High Court.

(2) N cannot rely on Chapter 12 of the NHC because Chapter 12 only applies where an

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emergency has been determined to exist by MEC, which did not happen in this case.

(3) The obligation to provide services under Chapter 13 of the NHC is only applicable following a decision to upgrade a settlement to a township; the chapter is ‘based on the principle that capital-intensive services will not be provided’ until such decision has been made. Given that EMM has complied with its obligations under Chapter 13.7.1 (as it has submitted an application for assistance to MEC) and MEC’s decision on upgrade has yet to be made, N’s Chapter 13 arguments must fail. N can only rely on Chapter 13 if/when MEC decides to upgrade.

(4) Chapters 12 and 13 of the NHC were promulgated to give effect to rights conferred by s 26 of the Constitution. Where legislation is intended to give effect to a constitutional right, a litigant should either (a) rely on the legislation or (b) challenge the legislation as unconstitutional (Lindiwe Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28 applied). N made no challenge to either chapter. Therefore, whilst N was correct to rely on Chapters 12 and 13, he cannot rely directly on the Constitution.

(5) N’s reliance on constitutional provisions other than s 26 is ‘vague and insufficiently specified’. Where possible, it is more appropriate to invoke specific constitutional rights than general rights. For example, although access to housing relates to human dignity, it is more appropriate to rely directly on the right of access to adequate hous-ing than the right to human dignity in a case such as the present.

(6) Part of EMM’s proposed new evidence was an offer to provide the Settlement with one chemical toilet for every ten families. The court will not pronounce on the rea-sonableness or rationality of this policy as it constitutes new evidence. The court will, however, note down and record EMM’s intention. An offer from MEC and other respondents to assist EMM with financing for one chemical toilet per four families does, however, require attention. Although it is tempting to order EMM to accept the offer, it would not be just and equitable to do this given that there are thousands of other persons in similar situations in other settlements across the region who would not benefit from the proposal.

(7) As the Settlement residents’ Chapter 13 rights are dependent on MEC reaching a deci-sion on EMM’s application to upgrade the Settlement to a township, a delay of three years in reaching such decision is unjustified and unacceptable; indeed, the delay offends s 2379 and 26(2) of the Constitution. MEC’s delay is largely to blame for the residents’ current situation; without a decision little can be done to improve living conditions. It just and equitable to order MEC to reach a decision within 14 months.

(8) Although N’s claim has been largely unsuccessful, he should not be ordered to pay the respondents’ costs as the case has raised important constitutional issues (Bothma v Els and Others [2009] ZACC 27; 7 CHRLD 140 at [89]-[99] and Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14 at [23] considered). As the delay in MEC’s decision is a root cause of N’s plight, MEC should pay N’s costs in this court.

for the applicants: urd mansingh; instructed by webber wentzel for the first respondent: j campbell sc and m a kruger; instructed by bham & dahya

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housing

7 CHRLD

for the second respondent: mr madlanga sc and n rajab-budlender; instructed by the state attorney for the third and fourth respondents: a g j marcus sc and n mji; instructed by the state attorney

[2009] zacc 33

Full text of judgment at http://www.saflii.org/za/cases/ZACC/2009/33.html

1. Section 26 provides: ‘(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable leg-islative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.’

2. Section 2 provides: ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is inva-lid, and the obligations imposed by it must be fulfilled.’

3. Section 7 provides: ‘(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, pro-tect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations con-tained or referred to in section 36, or elsewhere in the Bill.’

4. Section 10 provides: ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’

5. Section 39 provides: ‘(1) When interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dig-nity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or custom-ary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’

6. Section 173 provides: ‘The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.’

7. Chapter 12 is lengthy and can be read at: http://www.dhs.gov.za/. The Court in this case summarised it as follows: ‘Chapter 12…provides for housing assistance in emergency circumstanc-es. It provides for assistance to people who, for reasons beyond their control, find themselves in an emergency housing situa-tion such as their existing shelter being destroyed or damaged; their prevailing situation posing an immediate threat to their lives, health and safety; or eviction, or the threat of imminent eviction. Assistance is rendered “only in emergency situations of exceptional housing need”.’ Chapter 12.3.1 is particularly relevant and defines emergency housing circumstances as fol-lows: ‘This Programme will apply to emergency situations of exceptional housing need, such situations being referred to as “Emergencies”, as defined below. An Emergency exists when

MEC, on application by a municipality and/or the provincial housing department, deems that persons affected, (a) Owing to situations beyond their control: (i) have become homeless as a result of a declared state of disaster, where assistance is required, including cases where initial remedial measures have been taken in terms of the Disaster Management Act, 2002 (Act No 57 of 2002) by government, to alleviate the immedi-ate crisis situation; (ii) have become homeless as a result of a situation which is not declared as a disaster, but destitution is caused by extraordinary occurrences such as floods, strong winds, severe rainstorms and/or hail, snow, devastating fires, earthquakes and/or sinkholes or large disastrous industrial incidents; (iii) live in dangerous conditions such as on land being prone to dangerous flooding, or land which is dolomitic, undermined at shallow depth, or prone to sinkholes and who require emergency assistance; (iv) live in the way of engineer-ing services or proposed services such as those for water, sewerage, power, roads or railways, or in reserves established for any such purposes and who require emergency assistance; (v) are evicted or threatened with imminent eviction from land or from unsafe buildings, or situations where pro-active steps ought to be taken to forestall such consequences; (vi) whose homes are demolished or threatened with imminent demoli-tion, or situations where proactive steps ought to be taken to forestall such consequences; or (vii) are displaced or threatened with imminent displacement as a result of a state of civil con-flict or unrest, or situations where pro-active steps ought to be taken to forestall such consequences; (vii) live in conditions that pose immediate threats to life, health and safety and require emergency assistance; and (b) Are in a situation of exceptional housing need, which constitutes an Emergency that can rea-sonably be addressed only by resettlement or other appropriate assistance, in terms of this Programme.’

8. Chapter 13 is lengthy and can be read at: http://www.dhs.gov.za/. The Court in this case summarised it as follows: ‘Chapter 13 of the National Housing Code provides for the upgrading of informal settlements. It relates to the provision of grants to a municipality to enable it to upgrade informal settlements in its jurisdiction in a structured way and on the basis of a phased development approach’. Chapter 13.7.1 is particularly relevant and provides, in the court’s words, that: ‘[M]unicipalities are responsible for considering whether a matter merits the submission of an application for assistance under this chapter. If the matter merits the submission of an application, the paragraph provides for a municipality to take certain action’. To this effect paragraph 13.7.1 of the Code provides that the Municipality should [inter alia]: ‘Provide basic municipal engineering services such as water, sanitation, refuse removal services and other municipal services’.

9. Section 237 provides: ‘All constitutional obligations must be performed diligently and without delay.’

303

indigenous people | international and regional procedures

7 CHRLD

Indigenous people first nation band | elections | voting | residence requirement justifiable | See political participation – Woodward v Council of the Fort McMurray & Ors; Cockerill v Fort McMurray First Nation

#468 & Ors

International and regional proceduresjudgment | execution | legitimate expectation outweighed by public policy

GRAMARA (PRIVATE) LIMITED & ANOR V GOVERNMENT OF THE REPUBLIC OF ZIMBABWE & ORS high court (harare) zimbabwepatel j 26 jan 2010

G was evicted from land without compensation pursuant to the Zimbabwe Government’s programme of land reform – a programme constitutionally recognised in s 161 of the Zimbabwe Constitution. Together with 77 others, G obtained a judgment from the Southern African Development Community (‘SADC’) Tribunal (‘the Tribunal’) in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, which held that (a) fair compensation was payable to those evicted, (b) the Zimbabwe Government was in breach of its obligations under the SADC Treaty (‘the Treaty’), (c) amendments to the Zimbabwe Constitution enacting elements of the land reform pro-gramme were in breach of the Treaty, and (d) the Government should take all necessary measures to protect the applicants’ ownership of their land. In this case, G sought an order for registration of the Tribunal’s decision for the purposes of its enforcement in Zimbabwe.

The court considered the six general requirements for recognition and enforcement of foreign judgments at common law set out in Joubert (ed), The Law of South Africa (Vol 2, First Reissue, 1993) (in the absence of Zimbabwean legal authority the court assumed that the Zimbabwean position was identical to that in South Africa), and determined that two requirements were in issue: (a) whether the Tribunal had jurisdiction to entertain the case according to the principles of Zimbabwean law with reference to the jurisdiction of foreign courts, and (b) whether the recognition and enforcement of the Tribunal’s deci-sion in this case would be contrary to public policy in Zimbabwe.

In dismissing the application, finding that the Tribunal did have jurisdiction to entertain the case but that enforcement of the judgment in Zimbabwe would be contrary to public

304

international and regional procedures

7 CHRLD

policy, it was held that:

(1) The decision of the Summit of the Heads of State or Government of the SADC on 14 August 2001 to adopt an agreement amending the Treaty (which established the Tribunal) was binding on all member states without need for further ratification, pursuant to Articles 36 and 10 of the Treaty. Zimbabwe thereupon became subject to the jurisdiction of the Tribunal and the jurisdictional competence of the Tribunal in the Campbell case (as above, heard and determined in 2008) cannot now be disputed (Vienna Convention on the Law of Treaties (1969) considered).

(2) By adhering to the Treaty and the agreement amending it, and thereby submitting to the jurisdiction of the Tribunal, the Zimbabwe Government has created an enforce-able legitimate expectation that it will comply with the requirements of the Treaty and abide by and enforce the decisions of the Tribunal (Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 considered). However, an incomparably greater number of Zimbabweans, who live on land acquired under the land reform programme, share the legitimate expectation that the Government will effectively implement the programme and fulfil their aspirations thereunder. Public policy as informed by basic utilitarian precept would dictate that the greater public good must prevail.

(3) The effect of registering the Tribunal’s judgment in Zimbabwe would be to chal-lenge a decision of the Supreme Court (Mike Campbell (Pvt) Ltd & Another v Minister of National Security Responsible for Land, Land Reform and Resettlement & Another SC 49/07, which held the land reform scheme to be constitutional) within its juris-dictional domain and hence undermine the authority of that court in Zimbabwe. Any such result could surely not be contemplated as conforming to public policy in Zimbabwe and must militate against the registration of the Tribunal’s decision.

(4) If the Tribunal’s judgment were to be registered, compliance with it would require the Government to contravene what Parliament had specifically enacted in the Constitution. This would be completely contrary to public policy and, given that the Constitution is the supreme law of Zimbabwe,2 also to law. The notion of public pol-icy cannot be deployed under the common law to circumvent the fundamental law of the land. Any feature of a foreign judgment that conflicts with the Constitution cannot be recognised or enforced in Zimbabwe.

for the applicants: l uriri; instructed by gollop & blank for the respondents: mrs f maxwell; instructed by the civil division of the attorney-general’s office for the intervener: mr g n mlotshwa; instructed by mlotshwa & co

[2010] ZWHHC 1

Full text of judgment at http://www.saflii.org/zw/cases/ZWHHC/2010/1.html

305

international and regional procedures | international standards

7 CHRLD

International standards case law | act of state doctrine | torture | detainee mistreated by foreign officials in foreign states | secondary involvement of domestic officials | claim against domestic officials allowed | See accountability & impunity – Habib v

Commonwealth of Australia

1. Section 16A provides: ‘(1) In regard to the compulsory acquisition of agricultural land for the resettlement of people in accordance with a programme of land reform, the following factors shall be regarded as of ultimate and overriding importance— (a) under colonial domination the people of Zimbabwe were unjustifiably dispossessed of their land and other resources without compensation; (b) the people consequently took up arms in order to regain their land and political sovereignty, and this ultimately resulted in the Independence of Zimbabwe in 1980; (c) the people of Zimbabwe must be enabled to reassert their rights and regain ownership of their land; and accordingly— (i) the for-mer colonial power has an obligation to pay compensation for agricultural land compulsorily acquired for resettlement, through an adequate fund established for the purpose; and (ii) if the former colonial power fails to pay compensation through such a fund, the Government of Zimbabwe has no obligation to pay compensation for agricultural land compul-sorily acquired for resettlement. (2) In view of the overriding considerations set out in subsection (1), where agricultural land is acquired compulsorily for the resettlement of people in accordance with a programme of land reform, the follow-ing factors shall be taken into account in the assessment of any compensation that may be payable— (a) the history of the ownership, use and occupation of the land; (b) the price paid for the land when it was last acquired; (c) the cost or value of improvements on the land; (d) the current use to which the land and any improvements on it are being put; (e) any investment which the State or the acquiring author-ity may have made which improved or enhanced the value of the land and any improvements on it; (f) the resources available to the acquiring authority in implementing the programme of land reform; (g) any financial constraints that necessitate the payment of compensation in instalments over a period of time; and (h) any other relevant factor that may be specified in an Act of Parliament.’ Section 16B provides: ‘(1) In this section— “acquiring authority” means the Minister responsible for lands or any other Minister whom the President may appoint as an acquiring authority for the purposes of this section; “appointed day” means the date of commencement of the Constitution of Zimbabwe Amendment (No. 17) Act, 2005. (2) Notwithstanding anything contained in this Chapter— (a) all agricultural land— (i) that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or (ii) that is identified after the 8th July, 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or (iii) that is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for

whatever purpose, including, but not limited to— A. settle-ment for agricultural or other purposes; or B. the purposes of land reorganization, forestry, environmental conservation or the utilization of wild life or other natural resources; or C. the relocation of persons dispossessed in consequence of the utilization of land for a purpose referred to in sub-paragraph A or B; is acquired by and vested in the State with full title therein with effect from the appointed day or, in the case of land referred to in subparagraph (iii), with effect from the date it is identified in the manner specified in that paragraph; and (b) no compensation shall be payable for land referred to in paragraph (a) except for any improve-ments effected on such land before it was acquired. (3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9), shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in sub-section (2)(b), that is to say, a person having any right or interest in the land— (a) shall not apply to a court to chal-lenge the acquisition of the land by the State, and no court shall entertain any such challenge; (b) may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensa-tion payable for any improvements effected on the land before it was acquired. (4) As soon as practicable after the appointed day, or after the date when the land is identified in the manner specified in subsection (2)(a)(iii), as the case may be, the person responsible under any law providing for the registration of title over land shall, without further notice, effect the necessary endorsements upon any title deed and entries in any register kept in terms of that law for the purpose of formally cancelling the title deed and regis-tering in the State title over the land. (5) Any inconsistency between anything contained in— (a) a notice itemised in Schedule 7; or (b) a notice relating to land referred to in sub-section (2)(a)(ii) or (iii); and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision. (6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land. (7) This section applies without prejudice to the obligation of the former colonial power to pay compensa-tion for land referred to in this section that was acquired for resettlement purposes.’

2. Section 3 of the Constitution provides: ‘This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.’

306

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Liberty & security arrest | excessive use of force unjustified | See remedies – R v Nasogaluak

bail | extradition | prohibition unconstitutional

ALEXANDER V MINISTER OF JUSTICE & ORS supreme court namibiamaritz ja, strydom and damaseb ajja 9 apr 2010 The USA applied to MJ for the provisional arrest of A on the grounds that he had com-mitted extraditable offences in the USA, in terms set out in s 11(1) of the Extradition Act 1996 (‘the Act’). A was subsequently arrested and brought before a magistrate, Mr Uanivi, who remanded the matter and granted bail to A. The USA then made a formal request for A’s extradition, prompting MJ to authorise a magistrate to proceed with an extradition enquiry. MJ addressed this authorisation to ‘The Magistrate, Windhoek’ but there were several magistrates in Windhoek at the time. Before the matter could proceed further, A launched an application in the High Court, arguing (a) that Mr Uanivi was the only magistrate who could be authorised to conduct an extradition enquiry under s 12 of the Act, and (b) that s 211 of the Act was unconstitutional, as it held that no person committed to prison under s 12(5) or 15(2) of the Act was entitled to bail. The High Court rejected A’s claim, holding that Mr Uanivi was not the only magistrate who could conduct the extradition enquiry and that the issue of whether s 21 was unconstitutional or not was purely speculative and as such was premature and not ripe for hearing. A appealed to the Supreme Court against both findings.

The argument surrounding Mr Uanivi centred on statutory interpretation of provisions of the Act, principally s 11(8). Regarding the constitutionality of s 21 of the Act, MJ argued that it was not certain that the extradition proceedings would continue or that s 21 would ever apply to A, meaning that the point was academic and thus that the court should not entertain it; that s 21 was necessary in order for the State to comply with its extradition duties; and that the Constitution did not expressly prohibit the measures in s 21. A argued that Parliament did not have the power to make laws which would infringe a fundamental right of an individual protected by Chapter 3 of the Constitution and so the issue of consti-tutionality became ripe for hearing when the provision was created; that there is no case law precedent for the prohibition of bail in circumstances such as the present; and that the limit on the right to liberty imposed by s 21 was not justifiable under the Constitution.

In allowing A’s appeal in part and finding s 21 to be unconstitutional, it was held that:

(1) The fact that a person is not yet convicted of an offence does not bar such person, whose rights are threatened by an invalid order, to bring the matter to court and it fol-lows that it is not necessary for A to be committed and imprisoned before he can test the constitutionality of s 21 (Transvaal Coal Owners Association v Board of Control 1921 TPD 447 at 452, Gool v Minister of Justice 1955 (2) SA 682 (C) and Afdelingsraad van

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Swartland v Administrateur, Kaap 1983 (3) SA 469 (C) applied). A party has standing to apply to a court for protection of his/her rights if either his/her rights have been infringed or there is a threat of such infringement. There is every chance that the extradition proceedings in A’s case will continue and thus A’s constitutional right to liberty is under threat by s 21. A’s claim is therefore ripe for hearing and not prema-ture.

(2) National and international jurisprudence indicates that a significant number of countries do not impose a blanket ban on bail such as is provided for in s 21 of the Act, and further stresses the importance of individual liberty and judicial protection against arbitrary detention. Indeed, the granting of bail post-committal is not a rare phenomenon and further some case law suggests that a state’s duty to surrender a committed person to a requesting state is no higher than the state’s duty in domestic criminal matters to ensure that the accused attends trial (Attorney General v Gilliland [1985] IR 643 at 646 applied and a number of other British, American and South African authorities considered).

(3) Article 72 of the Constitution contains a substantive right to liberty, as the Constitution must be interpreted so as to afford to its subjects the full protection of the rights set out in Chapter 3. This interpretation is overwhelmingly supported by jurisprudence and constitutions and human rights instruments (Julius v Commanding Officer, Windhoek Prison & Ors; Nel v Commanding Officer, Windhoek Prison & Ors 1996 NR 390 applied, Article 9(1) of the International Covenant on Civil and Political Rights and s 12 of the South African Constitution considered and numerous other national and international cases and constitutional and human rights provisions discussed). The right to liberty is ‘one of the cornerstones on which a democratic society is built’ and ‘without such right there is no protection for the individual against arbitrary arrest and detention’ (Katofa v Administrator-General for SWA & Ors 1985 (4) SA 211 (SWA) at 220I-221D and several other national cases considered).

(4) Limitations on constitutional rights must be proportionate to be constitutionally valid: the limitation must not constitute a disproportionate interference with the right in question. In order to pass the test of proportionality the limitation must be fair, not arbitrary and the means used must impair the right to the minimum possible extent (S v Vries 1998 NR 316 (HC) and Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia & Ors [2009] NASC 17 applied, A S (Somalia) (FC) & Anor v Secretary of State for the Home Department [2009] UKHL 32 and other UK and European cases considered, and S v Hendriks 1992 NR 382 (HC) distinguished). Whilst the State is entitled to take measures to enable it to fulfil its extradition obliga-tions and the denial of bail to persons under s 21 of the Act is a legitimate method of achieving this objective, the limitation imposed on the right to liberty is simply not proportionate. Section 21 is unfair and arbitrary because it does not distinguish between persons who are and are not a flight risk in determining whether to grant bail. Further, it is foreseeable that s 21 may lead to an unconvicted person being detained for far longer than the actual sentence s/he would receive for her crime, on account of appeals and delays in the system. Accordingly, A has proven that s 21 breaches his constitutional right to liberty and the provision should be struck down as unconstitutional.

308

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(5) The magistrate authorised to proceed with an extradition enquiry need not be the same magistrate who first dealt with the proposed extraditee following his or her arrest. There are good reasons for allowing MJ unrestricted choice in selecting a magistrate to conduct an extradition enquiry and further such a conclusion is sup-ported by the Extradition Act itself. However, MJ’s authorisation must clearly identify one particular magistrate who is to proceed with the enquiry and that must be the magistrate who then does so proceed.

for the appellant: mr hodes sc, mr chaskalson and mr katz; instructed by metcalfe legal practitioners for the respondents: ms u katjipuka-sibolile; instructed by office of the government attorneys

[2010] nasc 2

Full text of judgment at http://www.saflii.org/na/cases/NASC/2010/2.html

bail | only evidence of involvement in offence inadmissible | grant appropriate

NUMERI V REPUBLIC high court malawichipeta j 19 nov 2009 N, a 21-year-old student, was arrested by Ndirande Police on 7 October 2009 following an allegation made by B, in custody on remand for the murder of several children, that N was a friend, thus classing him as a potential accomplice to the murders. N confirmed that B was in fact a former schoolmate. N was interrogated on the homicide allegations that B was to be tried on but denied all such allegations. Having then been placed in cus-tody for over a month, N petitioned the High Court seeking bail to resume his studies. In particular, he argued that there was no evidence linking him to the offences and that he was willing to abide by any conditions imposed by the court, outlining that he had no connections outside Malawi nor did he have a passport.

The State, however, vehemently opposed the application for bail arguing that it was against the interests of justice since the murders were not only connected to previous similar murders but the manner in which they were committed meant that a severe pun-ishment could be imposed for a guilty verdict, thus tempting N to avoid trial and jump bail. The outrage of the neighbourhood in reaction to the murders was also argued to pose a threat to N’s safety if he were to be released on bail. The State indicated that it planned to bring N to trial quickly, but also outlined that it had not yet completed its investigations.

In allowing the bail application, it was held that:

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(1) Bail is a qualified right that lies at the discretion of the court. The court has the power to grant bail in all cases, including murder cases, and it should do so unless the State proves that it would be against the interests of justice (s 42(2)3 of the Constitution and Fadweck Mvahe v Republic MSCA Criminal Appeal No. 25 of 2005 applied). The pos-sibility of a suspect absconding and not attending trial is a paramount consideration in deciding whether or not to grant bail; if the court can be relatively sure that the suspect will attend trial then the court should generally release him or her on bail.

(2) N’s arrest and detention is based entirely on what B has said about him; after a month of N being in detention the police still have no more relevant evidence and N contin-ues to deny any involvement in the murders. B’s assertions may be true or untrue but, either way, they are not something that can be used against N in a court of law because, under s 176(2)4 of the Criminal Procedure and Evidence Code (Cap 8:01), when more than one suspect is being tried for an offence, the fact that one of them confesses that he committed the offence is evidence only against himself, even if he implicates the other accused person. The confession can only be admitted against the other accused person if that person accepts the truth of the accusation and adopts it as his/her own confession. Therefore, the State has no evidence against N, as the only information it does have is B’s alleged implication, which is inadmissible. In addi-tion, this state of affairs means that N is unlikely to be brought to trial quickly and, in any event, the State has conceded that investigations are not complete.

(3) In the circumstances, and taking into account ss 42(2) and 185 of the Constitution, it cannot be said that it is against the interests of justice to grant bail to N. Rather, the interests of justice favour granting N bail and accordingly he should be released from custody, subject to conditions (including a bond, sureties, surrender of travel docu-ments, reporting weekly to a police station and not leaving Blantyre district).

for the applicant: mambulasa for the respondent: chimwaza and maele

[2009] mwhc 9

detention | abroad | responsibility arose from provision of intelligence and participation in interrogation

CANADA (PRIME MINISTER) V KHADR supreme court canadamclachlin cj, binnie, lebel, deschamps, fish, 29 jan 2010abella, charron, rothstein and cromwell jj K is a Canadian citizen who in July 2002, when he was 15 years old, was taken prisoner

310

liberty & security

7 CHRLD

by US forces in Afghanistan for allegedly throwing a grenade which killed an American soldier. About three months later he was transferred to Guantanamo Bay and placed in adult detention facilities. In 2004 he was charged with war crimes by the US but, at the time of this judgment, his trial was still pending. In 2003 he was interviewed by agents from two Canadian state intelligence services, CSIS and DFAIT, and the product of these interviews was shared with the US authorities. In 2004 DFAIT interviewed K again, in the knowledge that he had been subject to the ‘frequent flyer program’, a sleep deprivation technique, in an attempt to reduce his resistance to interrogation. In 2005 the Federal Court issued an interim injunction prohibiting CSIS and DFAIT agents from further interviewing K (Khadr v Canada 2005 FC 1076; 6 CHRLD 56). In 2008, the Supreme Court ordered the Canadian Government to disclose transcripts of K’s interviews with CSIS and DFAIT to K (Canada (Justice) v Khadr 2008 SCC 28; 7 CHRLD 32).

K repeatedly requested that the Canadian Government seek his repatriation to Canada but this was refused. In August 2008 K sought judicial review of the Government’s refusal, alleging that it infringed his rights under s 76 of the Canadian Charter of Rights and Freedoms (‘the Charter’). The Federal Court upheld K’s complaint, agreeing that the refusal violated his s 7 rights, and ordered that the Government request K’s repatriation. The Government appealed to the Federal Court of Appeal, which by a majority dismissed the appeal and confirmed the Federal Court’s order (though the s 7 breach was held to flow only from the 2004 interrogation). The Government appealed to the Supreme Court, which had to decide two issues: (a) was there a breach of s 7 of the Charter and (b) whether the remedy sought (i.e. repatriation) was appropriate and just in all the circumstances.

In partially allowing the appeal, finding that Canada’s conduct breached s 7 of the Charter but that the order to request repatriation should not be made, it was held that:

(1) The Charter does apply to the conduct of Canadian state officials alleged to have infringed K’s s 7 rights. Although principles of international law and comity generally prevent the Charter from applying to the actions of Canadian officials abroad, these principles do not apply to the assistance that DFAIT and CSIS gave the US authori-ties, in light of findings by the US Supreme Court that the regime at Guantanamo Bay at the relevant time constituted a clear violation of fundamental human rights protected by international law (Canada (Justice) v Khadr (above) followed).

(2) The Canadian Government has deprived K of his right to liberty and security of the person. The necessary causal connection between the Canadian Government’s actions and the alleged s 7 breach is present in this case because the conduct of the Government, in giving intelligence to the US authorities that will potentially form part of the prosecution case against K and participating in what was at the time an ille-gal regime, contributed and continues to contribute to K’s current detention (Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 applied).

(3) The Government’s conduct in depriving K of his s 7 rights violated the principles of fundamental justice. K was interviewed despite the fact that: Guantanamo detainees at the time could not challenge the legality of their detention by way of habeas cor-pus; K was 16 years old and had not had access to counsel or an adult with his best interests in mind; Canadian officials were fully aware that US authorities would have access to the interviews and nonetheless questioned K on matters relating to serious

311

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criminal charges where K was unrepresented; in the 2004 interview DFAIT had full knowledge that K had been subjected to three weeks of sleep deprivation for the purpose of making him more compliant. Canada’s participation in the illegal process in place at Guantanamo Bay violated the State’s binding international obligations (Canada (Justice) v Khadr (above) at [23]-[25] and Hamdan v Rumsfeld 548 US 557 (2006) considered).

(4) For the reasons given in paragraphs (1) to (3) above, Canada violated K’s rights under s 7 of the Charter.

(5) The remedy sought (i.e. repatriation) is sufficiently connected to the breach because the breach is still having an effect on K. The information disclosed to the US authori-ties by Canadian officials, obtained during their interrogations of K, is contributing to his continued detention and may yet be used in the US proceedings against him. Repatriation to Canada could potentially vindicate K’s s 7 rights.

(6) The Government’s decision to refuse K’s repatriation was made in the exercise of its prerogative power over foreign affairs. It is for the Government to decide how to exercise this power; the courts are limited to determining whether such a power exists in a given situation and, if so, whether its exercise infringes the Charter or other con-stitutional norms (Operation Dismantle v The Queen [1985] 1 SCR 441 and Air Canada v British Columbia (Attorney General) [1986] 2 SCR 539 applied).

(7) In this case, the remedy of repatriation is precluded because it infringes on the Government’s prerogative power, and thus the trial judge erred in exercising his dis-cretion to grant such a remedy. The judge’s decision to order repatriation ‘gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests’. In addition, the evidence presents an incomplete picture of all the considerations that the Government may need to assess in deciding whether to order K’s repatriation, and thus it is inappropri-ate for a court to order such a remedy.

(8) The appropriate remedy is a declaration that K’s s 7 rights have been breached and to leave it to the Government to decide how best to respond to this declaration.

for the appellants: robert j frater, doreen c mueller and jeffrey g johnston; instructed by the department of justice, ottawa for the respondent: nathan j whitling and dennis edney; instructed by parlee mclaws, edmonton for the intervener amnesty international: sacha r paul, vanessa gruben and michael bossin; instructed by thompson dorfman sweatman, winnipeg for the interveners human rights watch, the university of toronto faculty of law international human rights program and the david asper centre for constitutional rights: john norris, brydie bethell and audrey macklin (solicitors, toronto) for the interveners the canadian coalition for the rights of children and justice for children and youth: emily chan and martha mackinnon; instructed by justice for children and youth services, toronto

312

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7 CHRLD

for the intervener the british columbia civil liberties association: sujit choudhry and joseph j arvay qc; instructed by arvay finlay, vancouver for the intervener the criminal lawyers’ association (ontario): brian h greenspan; instructed by greenspan humphrey lavine, toronto for the intervener the canadian bar association: lorne waldman and jacqueline swaisland; instructed by waldman & associates, toronto for the interveners lawyers without borders canada, barreau du québec and groupe d’étude en droits et libertés de la faculté de droit de l’université laval: simon v potter, pascal paradis, sylvie champagne and fannie lafontaine; instructed by mccarthy tétrault, montréal for the intervener the canadian civil liberties association: marlys a edwardh, adriel weaver and jessica orkin; instructed by marlys edwardh barristers professional corporation, toronto for the intervener the national council for the protection of canadians abroad: dean peroff, chris macleod and h scott fairley; instructed by theall group, toronto and amsterdam & peroff, toronto

2010 scc 3; [2010] 1 scr 44

Full text of judgment at http://canlii.org/en/ca/scc/doc/2010/2010scc3/2010scc3.html

detention | only evidence of involvement in offence inadmissible | interests of justice favoured grant of bail | See liberty & security – Numeri v Republic

detention | pre-trial | failure to bring prisoner before judge within statutory deadline | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

extradition | bail | prohibition unconstitutional | See liberty & security – Alexander

v Minister of Justice & Ors

sentencing | disability meant imprisonment was inappropriate

EXCELL V NEW ZEALAND POLICE high court (palmerston north registry) new zealandronald young j 17 feb 2010 E, a sufferer of Asperger’s syndrome and Kallmann syndrome, was sentenced to seven months imprisonment for 31 counts of possessing child pornography under the Films Videos and Publications Classification Act 1993. In sentencing, the judge adopted the approach in R v Zhu [2007] NZCA 470, which involved placing the offending within levels defined by reference to the seriousness of the sexual abuse depicted and whether the offender possessed, distributed or produced the material. The judge considered that E’s offending attracted a starting point for sentence of 12 months imprisonment and that

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deterrence was such a vital aim that a custodial sentence should be imposed. However, the judge reduced the sentence by a third to take account of E’s early guilty plea and then reduced it further on account of his disabilities, bringing the total reduction to 42 percent.

There was substantial evidence before the court regarding E’s circumstances. Most notably, this showed that E was psychologically vulnerable and socially isolated; that he lacked understanding of appropriate sexual behaviour; that he posed a significant risk of re-offending; that he was motivated to seek treatment and indeed had already done so of his own accord; and that testosterone supplements prescribed for his Kallmann syndrome may have contributed to his offending and the consequent reduction in the dose by his doctors may well have reduced the risk of him re-offending.

E appealed against the seven-month sentence. He accepted that a starting point of 12 months imprisonment was correct, but argued that the judge focused too much on deterrence and failed to take adequate account of his disabilities, resulting in a manifestly excessive sentence. E contended that his disabilities operated to reduce his culpability, that he would be vulnera-ble if imprisoned and that he had demonstrated motivation to change. Accordingly, he asked the court to impose a rehabilitative sentence as opposed to a punitive one. NZP argued that the judge was correct to focus on deterrence and keeping E out of the community.

In allowing the appeal and imposing a non-custodial sentence, it was held that:

(1) Deterrence and condemnation for offences of this nature remains an integral part of sentencing. Those who access this type of material provide a market for it and thus support those who are directly involved in the abuse of children. However, the sen-tence ranges identified in Zhu are simply guidelines. Sentences should be tailored to the individual circumstances of each case, both with regards to the facts and the individual circumstances of the offender.

(2) Having both Asperger’s syndrome and Kallmann syndrome means that E’s culpabil-ity for his offending is significantly lower when compared to an ‘ordinary citizen’. His Asperger’s syndrome means that prison would be particularly difficult for him. In addition, E has demonstrated high motivation for treatment. The combination of these three factors means that imprisonment is not the most appropriate sentence in this case.

(3) The sentence imposed by the judge was, in any event, too high given the circum-stances. A sentence of four to five months imprisonment could have been appropriate but, if that had been imposed, then E could well have been released in eight to ten weeks. Such a period of incarceration is hardly protective to the public and further imposition of conditions post-imprisonment generally has only a modest rehabilita-tive effect.

(4) Taking into account the aforementioned issues, the sentence imposed is manifestly excessive. A rehabilitative sentence with the availability of a punitive aspect will serve E’s circumstances whilst also protecting the public and not detracting from the need for deterrence. Accordingly, E is sentenced to intense supervision for a two-year period and 300 hours of community work, and non-compliance will lead to impris-onment. Conditions attaching to his sentence include (a) prohibitions on associating with children and owning or accessing a computer, and (b) treatment.

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7 CHRLD

for the appellant: o s winter; instructed by winterwoods lawyers for the respondent: s johnston; instructed by ben vanderkolk & associates

[2010] nzhc 112

Full text of judgment at http://www.nzlii.org/nz/cases/NZHC/2010/112.pdf

sentencing | excessive use of force | reduction below minimum for breach of rights could be justified | See remedies – R v Nasogaluak

sentencing | pregnant woman | suspended sentence more appropriate | See family life – Regina v Malasa

sentencing | sexual offenders | notification requirement | absence of right to review disproportionate | See private life – R (on the application of F) & Anor v Secretary of State for the

Home Department

Life death | accident | failure to provide information | compensation required

PARASNATH TIWARI & ANOR V CENTRAL RESERVE POLICE FORCE & ANOR supreme court indiasharma and sirpurkar jj 11 jan 2010

While guarding the residence of the Development Commissioner at Aizwal, DR (a con-stable) saw a man (the deceased who was also a constable) climbing a tree and shot four

1. Section 21 provides: ‘No person - (a) committed to prison under section 12(5) or 15(2) to await the Minister’s decision in terms of section 16; (b) committed to prison under sec-tion 12(5) to await the Minister’s decision in terms of sec-tion 16 and who has appealed against the committal order in question in terms of section 14; or (c) whose return to a designated country has been ordered by the Minister under section 16, shall be entitled to bail.’

2. Article 7 provides: ‘No persons shall be deprived of person-al liberty except according to procedures established by law.’

3. Section 42(2) provides: ‘Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained per-

son, have the right – […] (e) to be released from detention, with or without bail unless the interests of justice require otherwise […].’

4. Section 176(2) provides: ‘No confession by any person shall be admissible as evidence against any other person except to such extent as that other person may adopt it as his own.’

5. Section 18 provides: ‘Every person has the right to per-sonal liberty.’


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life | marriage

7 CHRLD

rounds of bullets from a distance of 15 yards, killing him instantly. T (the deceased’s father) made several requests for a photograph of his late son’s body but never received one. However T did receive a letter from a friend of the deceased on 18 December 1982 stating that the death had not been an accident, but a brutal murder by the deceased’s fel-low constables. In response, T petitioned the High Court, requesting it to direct CRPF to conduct an inquiry into the death, take action against the culprit, conduct an independent inquiry into the incident and award suitable compensation of Rs. 5 lakhs for the mental agony and financial loss suffered as a result of the death. CRPF stated that the death was accidental but that DR was dismissed from service following a departmental inquiry. The High Court granted compensation to T of Rs. 1 lakh for the mental agony suffered dur-ing the 20 years since the deceased’s death, the denial of proper information about the circumstances of death and the financial difficulties suffered from the loss of the family’s principal earner. T appealed to the Supreme Court in an attempt to secure increased compensation. CRPR argued that Rs. 1 Lakh amounted to suitable compensation due to the lack of any negligence on its part.

In allowing the appeal and increasing the compensation awarded to T, it was held that:

The death of T’s son was the result of accidental misidentification by an individual in the service of CRPF. The High Court’s findings that the death resulted in mental agony and financial loss for the deceased’s family are accurate and indeed not challenged by CRPF. In the circumstances, an award of Rs. 1 lakh is inadequate compensation. T is elderly, the deceased was the sole earner in the family and thus helped to sustain it, and losing a young son leaves a void in a family. Therefore, the compensation awarded should be increased to Rs. 2 lakh (Charanjit Kaur (Smt.) v Union of India and Others [(1994) 2 SCC 1] distinguished).

for the appellant: counsel not named for the respondent: mrs indira jaisingh

[2010] insc 32


Marriage age restriction | breach | bride to remain with parents until age of majority | See children – Association for Social Justice & Research v Union of India & Ors

divorce | maintenance | muslim woman | claim possible until re-marriage | See women – Shabana Bano v Imran Khan

316

marriage | movement | nationality

7 CHRLD

women | bar on continued employment afterwards unjustified but constitutional | See equality – Johnson and Balwant v The Attorney General of Trinidad and Tobago

women | bride price | custom not unconstitutional where voluntary | See women – Mifumi (U) Ltd & Ors v Attorney General & Anor

Movement extradition | family life | impact was proportionate | See family life – Norris v

Government of United States of America

extradition | public interest in effective system | See family life – Norris v Government of

United States of America

residence | children | custody | relocation | importance of contact with both parents | parental freedom of movement must yield to child’s best interests | See children – B v K

Nationality citizenship | revocation | concealment of involvement in war crimes | duress a justification | See nationality – Helmut Oberlander v The Attorney General of Canada

citizenship | revocation | effect of deportation on personal interests not relevant

HELMUT OBERLANDER V THE ATTORNEY GENERAL OF CANADA federal court of appeal canadalayden-stevenson, ryer and sharlow jja 17 nov 2009

On 17 May 2007, O’s citizenship was revoked by the Governor in Council (GIC) of Canada, on the basis that he had obtained it by knowingly concealing material circumstances. Those circumstances were that, during World War II, O was an auxiliary of the Einsatzkommando 10a (Ek 10a), a military unit operating behind the German army’s front line and belonging to a force responsible for the deaths of more than two million people, the majority of whom were Jewish civilians. O served with the Ek 10a from 1941 to 1943 as an interpreter and an auxiliary. He was also responsible for finding and protecting food and polishing the boots of combatants. Following his discharge from Ek 10a in 1943, he served until 1944 as an infantryman with the German army. In 1954 O immigrated with his spouse

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to Canada and they now have two daughters. He did not disclose his wartime past to Canadian officials before or during entry to the country, or on application for citizenship. O became a Canadian citizen in 1960.

In 1995 the process for revocation of O’s citizenship was initiated, under ss 101 and 182 of the Citizenship Act 1985. A Reference to the (then) Federal Court of Canada, Trial Division was made regarding O’s citizenship. The facts of the case were established at this point by MacKay J, who found that O falsely represented his background and knowingly concealed information in order to obtain citizenship. These facts remain binding. Upon receipt of these findings, the Minister of Citizenship and Immigration (‘the Minister’) recommended to the GIC that O’s citizenship be revoked. O applied unsuccessfully for judicial review and then appealed to the Federal Court of Appeal. The Court allowed the appeal and ordered the Minister to compile a new report for the GIC on the grounds that the previous report failed to (a) address the issues of complicity and conscription and (b) explain why O was deemed to fall within the Government’s ‘no safe haven’ policy (‘the NSH policy’) (which was designed to expel ‘individuals who have committed war crimes, crimes against humanity or any other reprehensible act during times of conflict’). The Minister compiled a new report, which also recommended revocation of citizenship and thus the GIC again revoked O’s citizenship. O again sought judicial review in the Federal Court but his application was dismissed, which decision led to the appeal in this case.

The parties agreed that the Ek 10a was a limited brutal purpose organisation (LBPO) for the purposes of the NSH policy.3 However, O argued that membership of a LBPO is insufficient to establish the complicity in war crimes or crimes against humanity (‘relevant crimes’) required for him to fall foul of the NSH policy. O also raised the issue of duress. Finally, O argued that the GIC failed to adequately consider his personal interests. The AG contended that complicity is established simply by membership of a LBPO and knowledge of and involvement in relevant crimes. The AG agreed that duress can absolve culpability but argued that O had not previously raised this issue and thus that he could not rely on it. O countered that duress, whilst not specifically pleaded, was an issue evident from the record.

In allowing the appeal in part and referring the issue of duress back to the GIC for determination (Sharlow JA dissenting), it was held that:

Per Layden-Stevenson JA (Ryer JA concurring):

(1) Membership in a LBPO does not in itself establish complicity, but it does establish a rebuttable presumption of complicity. The presumption can be rebutted by evidence that either mens rea (knowledge of the commission of relevant crimes) or actus reus (direct or indirect involvement in relevant crimes) was absent (Ramirez v Canada (Minister of Citizenship and Immigration) [1992] 2 FC 306 (FCA) at 317 and a number of other Federal Court of Appeal decisions applied, Citizenship and Immigration Manual ENF 18, War crimes and crimes against humanity (Ottawa, Public Works and Government Services Canada (Ministerial Guidelines)) considered).

(2) The binding facts of the case, established by MacKay J in the initial Reference, found that the requisite mens rea and actus reus were present. O was aware of the purpose

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of Ek 10a and was indirectly participating in its activities through his actions as an auxiliary. O was therefore complicit in Ek 10a’s activities.

(3) The justification of duress is available to absolve complicity (Ramirez (above) and Equizabal v Canada (Minister of Citizenship and Immigration [1994] 3 FC 514 (CA) applied). Duress does not negate any findings with regard to mens rea or actus reus but operates to exonerate the culpability of the complicit individual. Where complicity in a LBPO is established the individual may still plead duress.

(4) To establish duress an individual must show that (a) he acted in response to a threat of imminent death or of continuing or imminent serious bodily harm against himself or another person; (b) he acted necessarily and reasonably to avoid the threat (so duress cannot be relied on if he brought the situation about voluntarily); and (c) he did not intend to cause a greater harm than the one he sought to avoid (Equizabal (above) and Ministerial Guidelines (above) applied).

(5) When dealing with a LBPO, the issue of conscription should be considered in relation to the justification of duress, not in relation to the issue of membership (as was the approach of the GIC).

(6) O accepts that conscription is not in itself enough to prove duress; however, he contends that when conscription is combined with the prospect of execution on desertion duress may be established.

(7) Although O did not expressly plead duress, there was sufficient evidence available to the GIC to require it to address the issue. O’s evidence in the Reference and to the GIC clearly suggests that he believed he would risk serious harm if he did not follow orders of the German authorities. The GIC is entitled to reject duress as a justification but it must not ignore it. Therefore the matter should be remitted to the GIC for consideration of the duress issue.

(8) Regarding O’s argument about his personal interests, the Federal Court judge correctly noted that deportation issues are irrelevant to revocation of citizenship as deportation is a separate process. Nonetheless, the judge determined that O’s personal interests did not outweigh the public interest and this was a reasonable conclusion.

Per Sharlow JA (dissenting):

The GIC made no error when it did not address the issue of duress. O had not previously raised the issue and there is no reasonable explanation for this failure, suggesting that it was a deliberate decision on his part. The fact that jurisprudence regarding duress in the context of LBPO’s is underdeveloped does not justify O’s failure. Accordingly the appeal should be dismissed.

for the appellants: barbara jackman and ronald poulton; instructed by barrister & solicitor, toronto for the respondent: john provart, catherine vasilaros and tessa kroeker; instructed by john h sims qc, deputy attorney general of canada

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2009 fca 330

Full text of judgment at http://www.canlii.org/en/ca/fca/doc/2009/2009fca330/2009fca330.html

Political participation constitutional amendment | referendum requirement was only consultative

PRIME MINISTER OF BELIZE & ANOR V VELLOS & ORS judicial committee of the privy council belizelord phillips, lady hale, lord mance, 24 mar 2010lord collins and lord clarke

Section 69 of the Belize Constitution 1981 makes provision for alterations to the Constitution by Parliament. Under s 69, for a Bill altering Part II – which accords certain fundamental rights and freedoms to everyone in Belize – to be validly passed into law it (a) cannot be submitted for its second reading until 90 days have passed from its introduc-tion and (b) must be supported by at least three-quarters of the House of Representatives on its third reading. A Bill altering any other constitutional provision requires only a two-thirds majority of the House of Representatives on its third reading. The Referendum Act 1999 introduced a requirement that a referendum must be held for any amendment to

1. Section 10 provides: ‘(1) Subject to section 18 but notwith-standing any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, (a) the person ceases to be a citizen, or (b) the renunciation of citi-zenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto; (2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent resi-dence by false representation or fraud or by knowingly con-cealing material circumstances and, because of that admis-sion, the person subsequently obtained citizenship.’

2. Section 18 provides: ‘(1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that per-

son does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances; (2) The notice referred to in subsec-tion (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address; (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.’

3. The relevant part of the policy reads: ‘World War II Cases: The government pursues only those cases for which there is evidence of direct involvement in or complicity of war crimes or crimes against humanity. A person is considered complicit if, while aware of the commission of war crimes or crimes against humanity, the person contributes, directly or indirectly, to their occurrence. Membership in an organization responsi-ble for committing the atrocities can be sufficient for complic-ity if the organization in question is one with a single, brutal purpose, e.g. a death squad.’

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Part II which ‘derogates from the fundamental rights and freedoms guaranteed therein’ (‘a Part II referendum’). The Referendum Act was not passed according to the procedures in s 69 of the Constitution.

On 25 April 2008 the Government introduced the Belize Constitution (Sixth Amendment) Bill (‘the Constitution Amendment Bill’) and the Referendum (Amendment) Bill. The for-mer made significant derogation from some of the fundamental rights contained in Part II of the Constitution, notably s 5 (right to personal liberty) and s 17 (right to the ownership of property), and the latter removed the obligation to hold a referendum on amendments to Part II. Clause 2 of the Constitution Amendment Bill removed the protections of (a) habeas corpus and (b) the requirement to be brought before court within 48 hours of arrest, from certain classes of detainees. Clause 3 removed specified materials, principally petroleum and minerals, from the protection against compulsory deprivation of property without compensation and access to a court.

The two bills had their first reading on 25 April 2008. On 9 May 2008 V, acting out of ‘pub-lic spirit’, sought permission to apply for judicial review of PMB’s decision to introduce the two bills, arguing that PMB breached the Referendum Act by not requesting a Part II referendum in relation to the introduction of the Constitution Amendment Bill. PMB countered that, because the Referendum Act was not passed according to the procedures in s 69 of the Constitution, the requirement to hold a Part II referendum was invalid. On 16 May 2008 the Chief Justice granted V permission and also granted an interim injunc-tion restraining the Attorney General from taking steps to obtain the Governor-General’s (GG) assent to the Referendum (Amendment) Bill. The Referendum (Amendment) Bill passed through the legislative process without incident, but could not be passed to GG for assent due to the interim injunction. The Constitution Amendment Bill was referred to the Constitution and Foreign Affairs Committee (‘the Committee’) for consultation. On 22 August 2008, the Committee recommended that clause 2 of the bill be deleted and that clause 3 be amended. A third reading took place on the same day and the bill was passed by the required three-quarters majority in the House of Representatives. However, assent from the GG was not sought due to the judicial challenge.

On 28 July 2008 V’s judicial review claim succeeded before the Chief Justice. The court held that the requirement to hold a Part II referendum arose at the end of the legisla-tive process prior to GG assent, as this was the point at which a bill’s proposals would constitute a constitutional amendment. The court also discharged the interim injunc-tion granted on 9 May 2008. As a result, the Referendum (Amendment) Bill was sent for GG assent and became law on 30 July 2008. On 27 March 2009 PMB’s appeal was dismissed by the Court of Appeal. That court held that a Part II referendum was a con-sultative not legislative process, designed to ascertain the electorate’s opinion to proposed constitutional amendments. A Part II referendum should be held before a bill intended to amend the Constitution was introduced to Parliament. As this had not been done with respect to the Constitution Amendment Bill, the original bill (i.e. pre-Committee amend-ments) would instead have to be submitted to the electorate at the late stage that had been reached, as the public must have the opportunity to vote on the proposed amendments. The court made no mention of the alterations made by the Committee. PMB appealed to the Privy Council. Before the Privy Council V conceded that the Committee amendments to the Constitution Amendment Bill meant that he had essentially achieved his goals in

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bringing the proceedings.

In allowing the appeal and finding that the Prime Minister was not under an obligation to hold a Part II referendum in relation to the Constitution Amendment Bill, it was held that:

(1) There is no provision in the Referendum Act that imposes a statutory requirement to hold a Part II referendum in the relevant circumstances (indeed, neither party contended this). If there were such a provision then, as it would effectively alter the Constitution, it would be void for failing to comply with the s 69 requirements when passed. Instead, the purpose of a Part II referendum is only ‘consultative or advisory’ and the results are not binding on the legislature (Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett & Anor [2005] UKPC 3 distinguished). The obligation to hold a consultative Part II referendum is independent from the legislative process of amending Part II of the Constitution, and the latter can proceed in the normal way irrespective of the referendum. Clearly, this is not what the draft-ers of the Referendum Act had in mind and they undoubtedly sought to enable the electorate to inform any constitutional amendments. However, this is the only solu-tion to the problem, as the referendum requirement cannot be viewed as integral to the legislative process and the only other alternative is to hold that it is of no effect at all. The incentive to comply with the requirement to hold a consultative Part II refer-endum is essentially political, although the obligation could be enforced via judicial review.

(2) The requirement to hold a consultative referendum does not constitute a purported amendment to the Constitution. This is because whereas requiring a referendum as part of the legislative process imposes an obligation on the legislature, requiring a consultative referendum does not (Hawke v Smith 253 US 221 (1920) distinguished and Kimble v Swackhamer 439 US 1385 (1978) applied).

(3) The Chief Justice was wrong to hold that the Part II referendum should be held at the end of the legislative process but before GG assent and the Court of Appeal was wrong to hold that the Part II referendum should have been held before the Constitution Amendment Bill was introduced to the legislature. Instead, the obliga-tion to hold a Part II referendum arose on 25 April 2008, when the Constitution Amendment Bill was introduced and given its first reading. This approach enables the results of a referendum to be known before a bill’s second reading.

(4) Holding the referendum at this stage, i.e. between first and second reading, allows the electorate to inform the second reading but means that if the bill is later amended the electorate does not have a chance to vote on the proposed amendments. This was the issue that led the Chief Justice to decide that the requirement to hold a referendum arises at the conclusion of the legislative process. Nonetheless, the fact that amend-ments may be made at later stages does not alter the fact that a Part II Referendum need only be held between first and second readings. In any event, in the present case, it is arguable that the amendments made to the Constitution Amendment Bill by the Committee removed all provisions that derogated from the fundamental rights and freedoms guaranteed by Part II.

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(5) In view of point 4, it is not necessary to consider whether the obligation to hold a referendum on the Constitution Amendment Bill survived the passing of the Referendum (Amendment) Act.

(6) The Chief Justice should not have issued the interim injunction restraining the pass-ing of the Referendum (Amendment) Bill.

(7) The referendum proposed by the Court of Appeal (i.e. allowing the electorate to vote on the Constitution Amendment Bill in its original, pre-Committee amendments form) is of little use, given that the amendments have essentially removed the parts of the bill offensive to V. V has not requested an order requiring a referendum in rela-tion to the bill in its revised form and thus it would not be appropriate to comment on the merits of such a course. In all the circumstances, the PMB is no longer under an obligation to hold a Part II referendum and thus the appeal should be allowed.

for the appellants: lois m young sc and dr lloyd barnett; instructed by charles russell llp for the respondents: lisa shoman sc; instructed by shoman law

[2010] ukpc 7


discrimination | disability | elections | voting | accessibility of polling stations inadequate | See disability – Hughes & Anor v Elections Canada

elections | legislature | candidacy | exclusion of non-citizens justifiable | See political participation – r (on the application of Barclay & Ors) v Secretary of State for Justice & Ors

elections | legislature | choice not undermined by role of unelected members

R (ON THE APPLICATION OF BARCLAY & ORS) V SECRETARY OF STATE FOR JUSTICE & ORS supreme court united kingdomlord hope, lord scott, lord brown, 1 dec 2009lord neuberger and lord collins Sark is a small island in the Channel Islands. At the time of this case, Sark had a popu-lation of about 600, of which around 500 were entitled to vote. This appeal concerned the application of Article 31 of the First Protocol to the European Convention on Human Rights (‘the First Protocol’) to the constitutional changes introduced on Sark under the Reform (Sark) Law 2008 (‘the Reform Law’), insofar as these related to the composition of the Chief Pleas – Sark’s legislature and executive (Sark has a unicameral system).2

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At the time, the Chief Pleas consisted of 30 members, of which 28 were Conseillers. The Conseillers were democratically elected: each member of the electorate voted for 28 candidates and the 28 with the highest number of votes succeeded. The remaining two members of the Chief Pleas – the Seigneur (Lord of Sark) and Seneschal (Steward) – were unelected: the Seigneur being a hereditary post and the Seneschal being appointed by the Seigneur. Neither the Seigneur nor the Seneschal had the right to vote on matters before the Chief Pleas. The following powers of the Seigneur were relevant in this case: (a) the ability to temporarily veto Ordinances (legislation covering certain local affairs), though this did not include a power to veto Laws, and (b) the fact that the consent of the Seigneur was required for the Seneschal to summon an extraordinary meeting of the Chief Pleas, though such meetings could also be summoned in alternative ways. The Seneschal was the President of the Chief Pleas, though in this capacity s/he was not able to speak in favour or against the substance of any matter raised by the Conseillers.

B owned property on Sark and S was a Slovenian citizen living on Sark who sought to stand for election to the Chief Pleas (from here onwards the appellants will be collectively referred to as B). B contended that the Reform Law was incompatible with Article 3 for two reasons: (a) the Seigneur and Seneschal were unelected but yet they were prominent members of Sark’s legislature, and (b) S was prevented from standing for election to the Chief Pleas because, as a Slovenian citizen, he was an alien3 for the purposes of the Reform Act (on this latter ground B argued incompatibility with Article 3 read alone or in conjunction with the prohibition on discrimination in Article 14 of the ECHR). B’s com-plaints were litigated by seeking judicial review of decisions made by the relevant state authorities to recommend that the Reform Act receive Royal Assent. Both the High Court and Court of Appeal rejected B’s complaints and held that the Reform Law is compatible with Article 3. B appealed to the Supreme Court.

In dismissing the appeal and confirming that the Reform Law is compatible with Article 3, it was held that:

(1) The ECHR jurisprudence concerning Article 3 is voluminous. Nine principles can be extracted from the case law, and these are as follows:

(a) Article 3 is of fundamental importance in the ECHR system as it enshrines the principle of an effective democracy (Mathieu-Mohin v Belgium (1988) 10 EHRR 1 at [47], Yumak v Turkey (2009) 48 EHRR 61 at [105]&[107] and various other paragraphs from ECHR cases considered).

(b) Article 3 guarantees individual rights, including the right to vote and the right to stand for election (Mathieu-Mohin v Belgium (above) at [48]-[51], Yumak v Turkey (above) at [109(i)] and Zdanoka v Latvia (2007) 45 EHRR 478 at [102] considered).

(c) There can be ‘implied limitations’ on Article 3 rights and contracting states have a wide margin of appreciation in this area (Mathieu-Mohin v Belgium (above) at [52] and Yumak v Turkey (above) at [109(ii)] considered).

(d) The content of the Article 3 obligation varies according to the historical and politi-cal factors relevant to each contracting state, providing always that the system provides for conditions that ensure the free expression of the people in the choice of the legislature (Yumak v Turkey (above) at [109(iii)] and Aziz v Cyprus (2005) 41

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EHRR 164 at [28] considered).

(e) Article 3 is not subject to specifically identified limitations. Therefore, contracting states can justify a limitation if it is compatible with the principle of the rule of law and the general objectives of the ECHR (Yumak v Turkey (above) at [109(iii)] and Tanase v Moldova [2008] ECHR 1468 at [105] considered).

(f) Limitations on the exercise of the right to vote or stand for election must be imposed in pursuit of a legitimate aim, must not be arbitrary or disproportionate and must not interfere with the free expression of the people in the choice of the legislature (Yumak v Turkey (above) at [109(iii)-(iv)] considered).

(g) Such limitations must not restrict Article 3 rights to the extent that their very essence is impaired and/or they are deprived of effectiveness (Mathieu-Mohin v Belgium (above) at [52] and Yumak v Turkey (above) at [109(iv)] considered).

(h) Stricter requirements may be imposed on the eligibility to stand for election to parliament than on voting eligibility (Melnychenko v Ukraine (2006) 42 EHRR 784 at [57] considered).

(i) The practices of Council of Europe members are to be taken into account in determining whether electoral rules are compatible with Article 3, particularly in assessing rules regarding qualification to stand for election (Yumak v Turkey (above) at [111], Melnychenko v Ukraine (2006) 42 EHRR 784 at [30], Gitonas v Greece (1997) 26 EHRR 691 at [40] and Sukhovetsky v Ukraine (2007) 44 EHRR 57 at [76] considered).

(2) Article 3 does not require that all members of a legislature be elected; indeed, a leg-islature may consist of two chambers of which one is wholly unelected, such as the House of Lords in the UK. In a unicameral system such as that on Sark, it is true that having an elected legislature is best practice (dicta of Jacob J in R (on the application of Barclay & Ors) v Secretary of State for Justice & Ors [2008] EWCA Civ 1319 at [117] considered). However, this does not mean that Article 3 requires all members to be elected irrespective of the circumstances; the mere presence of some unelected mem-bers does not automatically breach Article 3.

(3) The fact that the Seigneur and Seneschal are members of the Chief Pleas despite being unelected does not contravene Article 3. The purpose of Article 3 is to ensure that legislation is enacted via democratic process. In Sark’s legislature, only the Conseillers are entitled to vote and thus it is only they who determine whether legisla-tion is enacted; neither the Seigneur nor the Seneschal can vote. The electoral process in Sark means that 500 people elect 28 Conseillers, resulting in one Conseiller to every 17-18 electorates. In the circumstances, ‘it is not easy to envisage, in the words of Article 3, conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature’.

(4) Even if the membership of the Seigneur and Seneschal to Sark’s legislature is regard-ed as a limitation on Article 3, then this limitation falls well within the applicable mar-gin of appreciation, in light of the constitutional history and political factors relevant to the island (including the longstanding presence of these positions and the manner

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in which changes to the electoral system have come about). In addition, the limitation fulfils all the conditions required by the ECHR jurisprudence: it is not arbitrary; it is proportionate, given that the Seigneur and Seneschal cannot vote; it does not impede the free expression of the opinion of the people of Sark; and it does not impair the essence or destroy the effectiveness of the people’s right to choose the legislature.

(5) None of the other powers of the Seigneur or Seneschal contravene Article 3. The Seigneur’s power to veto Ordinances is a temporary measure and the Chief Pleas have the final say on whether or not to confirm the Ordinance. Furthermore the Seigneur has no power at all to veto Laws. The power of veto has never been used in modern times and the Seigneur has given evidence that it would only ever be used in very lim-ited circumstances. As to the Seigneur’s consent being required for the Seneschal to summon an extraordinary meeting of the Chief Pleas, there are three methods of sum-moning such meetings and all require action by an unelected official. The existence of this power does not undermine effective democracy. Regarding the Seneschal, whilst it is anomalous to have an unelected official presiding over the legislature, it cannot be said that allowing such a position inhibits free elections for the choice of the legislature. In any event, the Chief Pleas has the power to amend the Reform Law and can thus alter or remove powers given to the Seigneur and Seneschal.

(6) There is ample case law from the European Court of Human Rights which confirms that Article 3 rights belong to citizens and thus not to aliens (Mathieu-Mohin v Belgium (above) at [54], Kovach v Ukraine [2008] ECHR 125 at [49] and Makuc v Slovenia [2007] ECHR 523 at [206] (citing Hirst v United Kingdom (No 2) (2006) 42 EHRR 41) applied, Guidelines on Elections of the Venice Commission (2002), International Covenant on Civil and Political Rights (1966) Articles 2, 25 and Melnychenko v Ukraine (2006) 42 EHRR 784 considered). In addition, all Council of Europe states impose a citizenship requirement on the right to stand for election. There is therefore a clear principle that provides justification for Sark’s position of prohibiting aliens from standing for election.

(7) An applicant must have a Convention right before he can complain of discrimination under Article 14 (Moustaquim v Belgium (1991) 13 EHRR 802 applied and Gaygusuz v Austria (1996) 23 EHRR 364 considered). As aliens have no right under Article 3 to stand for election, B cannot allege that he has been discriminated against in the enjoyment of this right.

for the first and second appellants: lord pannick qc, james dingemans qc and jessica simor; instructed by withers llp (uk) and ozannes advocates (guernsey) for the third appellant: in person for the respondents: jonathan crow qc and ben hooper; instructed by the treasury solicitors

[2009] uksc 9; [2010] ukhrr 86; [2010] 1 ac 464; [2010] hrlr 10; [2009] 3 wlr 1270


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voting | indigenous people’s chief and council | residence requirement justifiable

WOODWARD V COUNCIL OF THE FORT MCMURRAY & ORS; COCKERILL V FORT MCMURRAY FIRST NATION #468 & ORS federal court canadao’reilly j 26 mar 2010 The Fort McMurray First Nation (FMFN) Customary Election Regulations 1993 (‘the Regulations’) limited voting rights to persons who were (a) members of the band, (b) over 18 years of age and (c) residents, defined as persons who maintained a place of residence on one of the band’s reserves for at least six months of the year. W and C lived just off the reserve in the village of Anzac and, as a result, were unable to vote in elections for the chief and council of the FMFN. W and C sought, via judicial review proceedings, to have the regulations amended to allow non-residents to vote. W sought an order quashing a decision of the band’s chief and council refusing to remove the residency requirement from the Regulations, or an order requiring that the chief and council remove the require-ment. C sought an order requiring the band to allow non-residents to vote and an order quashing the most recent elections.

In dismissing the claims and finding that the residence requirement was constitutional, it was held that:

(1) The chief and council does not have jurisdiction to make a decision to refuse to remove the residency requirement. W’s judicial review application is thus based on a decision not amenable to judicial review and her application must accordingly be dismissed.

(2) In order to be protected by s 254 of the Canadian Charter of Rights and Freedoms (‘the Charter’), a band’s regulations must be founded in an established custom; otherwise they can be challenged on s 155 grounds. The available historical evidence suggests that the policy of differentiating between residents and non-residents in terms of entitlement to vote is not an established custom; it is a rule that has arisen out of administrative exigency. Therefore, s 25 cannot protect the practice from s 15 scrutiny.

(3) Where a band does not follow the election process in s 74 of the Indian Act and instead chooses its council or chief according to the custom of the band (as allowed by s 2 of the Indian Act), it is still reliant on delegated authority from Parliament and is considered ‘government’ for the purposes of s 326 of the Charter. Band councils act-ing according to custom and those operating under the Indian Act both derive their authority from the Indian Act, and are therefore both subject to the authority of the Charter (Clifton v Hartley Bay Indian Band 2005 FC 1030, Thompson v Leq’à:mel First Nation Council 2007 FC 707 and Scrimbitt v Sakimay Indian Band Council [2000] 1 FC 513 (TD) applied).

(4) Making the right to vote dependent on residence is discriminatory within s 15 of the Charter, as it denies non-residents legal equality and the distinction is based on a characteristic that the Government has no legitimate interest in requiring a person to change. It is irrelevant that a person may choose voluntarily to live off the reserve despite having the option to live on it; the distinction is still discriminatory because it

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implies that off-reserve members are lesser members of the band and inhibits their full association with the band (Thompson v Leq’à:mel First Nation Council (above) and Corbière v Canada (Minister of Indian and Northern Affairs) [1999] 2 SCR 203 applied).

(5) However, although the residence rule breaches the right to equality, it is a reasonable and proportionate limit on that right and can thus be justified by s 17 of the Charter. The council is akin to local government and the majority of its programs are exclusively for the benefit of residents, so it is logical that residents should choose who sits on the council. Off-reserve members make up 60% of reserve membership and it would be unreasonable to give a majority vote to non-residents on issues that do not actually affect them. Non-residents are entitled to vote on matters seriously affecting their own interests. The Regulations serve the important purpose of ensuring that the chief and council of the FMFN focus their attention primarily on the needs of reserve residents.

for the applicants (cockerill et al): priscilla kennedy; instructed by davis llp, alberta for the applicant (betty woodward): terrance glancy; instructed by royal, mccrum, glancy & teskey, alberta for the respondents: rangi jeerakathil; instructed by macpherson leslie & tyerman llp, saskatchewan

2010 fc 337

Full text of judgment at http://www.canlii.org/en/ca/fct/doc/2010/2010fc337/2010fc337.html

1. Article 3 provides: ‘The High Contracting Parties under-take to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expres-sion of the opinion of the people in the choice of the legis-lature.’

2. The ECHR and First Protocol are applicable to Sark by virtue of the United Kingdom having exercised its powers under Article 63 (now 56) of the ECHR and Article 4 of the First Protocol.

3. Under Section 50(1) of the British Nationality Act 1981, an ‘alien’ is: ‘a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland’.

4. Section 25 provides: ‘The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.’

5. Section 15 provides: ‘(1) Every individual is equal before and under the law and has the right to the equal protection

and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physi-cal disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

6. Section 32 provides: ‘(1)This Charter applies (a) to the Parliament and government of Canada in respect of all mat-ters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legisla-ture of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this sec-tion comes into force.’

7. Section 1 provides: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

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Private life interrogation methods | brain mapping, narcoanalysis and polygraph testing | involuntary use unjustified | See fair hearing – Selvi & Ors v State of Karnataka & Anor

reporting restrictions | freezing assets of suspected terrorists | anonymity orders stifled debate of general interest | See expression – Guardian News and Media Ltd & Ors, Re HM

Treasury v Ahmed & Ors

search and seizure | body search | prison officer | suspected theft | grounds and execution were appropriate

OFFICER COMMANDING CORRECTIONAL SERVICES – MOKHOTLONG & ANOR V SELEPE court of appeal lesothoramodibedi p, scott and howie jja 23 apr 2010 On 23 December 2005 R, a male prison officer, left a brown envelope of money in a work toilet. The toilets were then used by three other male officers, one of whom was S. When R returned for the forgotten money he couldn’t find it and so reported the matter to his superiors. D, as a superior, questioned all three officers who had used the toilets after R but the whereabouts of the money remained unknown. In a closed office, a search in line with prison rules was conducted by two male officers on each of the suspected officers. S was required to take off his clothes. On 24 December 2005, R reported to D that his money had been recovered next to a door leading to the women’s section of the prison. S contended that prior to his body search D had said that the money had been left in the women’s toilet, to which S responded he did not use those toilets and there was no money in the men’s, and thus that the search was unnecessary. S alleged that when his colleagues learned of the search he was teased about it and that as a result he felt humili-ated, his dignity and reputation suffered and his chances of promotion were adversely affected. The High Court ruled that S had been subjected to an ‘unwarranted’ body search and awarded damages. The court reasoned that the money could never have been in the men’s toilet and S had therefore been unnecessarily harassed. D appealed to the Court of Appeal against the finding of liability.

In allowing the appeal and setting aside the order for damages, it was held that:

(1) Prison rules clearly provide that prison officers must submit to searches if required to by the commanding officer. In the circumstances, searching S was a reasonable response and entirely warranted: a large sum of money disappeared from a toilet and S was one of three individuals who used the relevant toilets in the period between the leaving of the money and the discovery of its disappearance. D’s decision to order a search of S as and when he did cannot be faulted. S’s suggestion that he was told that the money was left in the women’s toilet is improbable; there are no grounds

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for thinking that R did not use the men’s toilet and leave the money there. The High Court’s reasoning in this regard is illogical.

(2) Rules relating to the searching of prisoners require that (a) strip searches shall not occur in sight of any other prisoner and (b) only officers of the same sex as the prisoner shall search the prisoner. These reasonable requirements were applied to the search of S and therefore there is nothing to suggest that the search was humiliating or harmful to S’s dignity or reputation. Therefore, the search was warranted and conducted in a reasonable manner, with the result that D is not liable to pay damages to S.

for the appellants: mr l v letsie for the respondent: mr k j metsing

[2010] lsca 12

Full text of judgment at http://www.lesotholii.org/ls/judgment/court-appeal/2010/12

search and seizure | legal basis existed | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

sexual offenders | notification requirement | absence of right to review disproportionate

R (ON THE APPLICATION OF F) & ANOR V SECRETARY OF STATE FOR THE HOME DEPARTMENT supreme court united kingdomlord phillips, lord hope, lord rodger, 21 apr 2010lady hale and lord clarke F and T were convicted of sexual offences carrying with them a sentence that automati-cally brought into effect notification requirements under s 82 of the Sexual Offences Act 2003 for an indefinite period (all persons sentenced to 30 months’ imprisonment or more for a sexual offence are under a duty to keep the police notified of where they are living and of travel abroad for the rest of their lives). There is no right to review of the notifica-tion requirements and this case was concerned with whether the absence of such a right resulted in a breach of Article 81 of the European Convention on Human Rights (right to respect for private and family life). The issue in this case was not specific to F and T and they made no claim that they would succeed in the removal of their own notification requirements. Both the Divisional Court and the Court of Appeal held that the notification requirements interfered with Article 8 rights, that the interference was in accordance with the law and that it pursued legitimate aims, namely the prevention of crime and the pro-tection of the rights and freedoms of others, but that the lack of any provision for review of

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the notification requirements rendered them a disproportionate manner of pursuing the legitimate aim. SSHD appealed to the Supreme Court. In line with the judgments of the lower courts, F and T did not seek to argue that the notification requirements themselves breached Article 8; indeed, they agreed that they were a lawful and proportionate means of pursuing a legitimate aim. The debate focused solely on whether the lack of a right to review of the notification requirements introduced an element of disproportionality into an otherwise unobjectionable system. SSHD argued that all sexual offenders had a latent predisposition to commit further sexual offences or, if some did not, it was impossible to identify who these were, with the result that a right to review would serve no purpose and so its absence was not disproportionate.

In dismissing the appeal and declaring the lack of an opportunity for individual review of the notification requirements incompatible with Article 8, it was held that:

(1) There is a three-pronged test for determining whether or not interference with a fundamental right is proportionate to the legitimate aim sought to be achieved: (a) the objective must be sufficiently important, (b) the measure used must be rationally connected to the objective and (c) the means used must be no more than is necessary to accomplish the objective (de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at p 80 applied). There is no question that the notification requirements in themselves comply with the proportionality require-ment and indeed this has been confirmed by the European Court of Human Rights (ECtHR) (Adamson v United Kingdom (1999) 28 EHRR CD 209 applied). Notification requirements fulfil a very important objective in preventing sexual offending.

(2) Although there are no direct authorities, binding or otherwise, on the issue of wheth-er the absence of a right to review of notification requirements breaches Article 8, there are cases relevant to this issue. These cases show that the ECtHR considers the possibility of review as an important consideration in assessing whether retention of sensitive personal information and notification requirements are proportionate and thus Article 8 compliant, and suggest that denial of review may render such measures disproportionate (S and Marper v United Kingdom (2009) 48 EHRR 50 and Bouchacourt v France (European Court of Human Rights, Application No. 5335/06, 17 December 2009, unreported) considered).

(3) The issue of proportionality in this case requires consideration of three questions: (a) what is the extent of the interference with Article 8 rights, (b) how valuable are the notification requirements in achieving the legitimate aims and (c) to what extent would that value be eroded if the notification requirements were made subject to review.

(4) Since the 2000 and 2003 Sexual Offences Acts, notification requirements have rep-resented a significantly greater interference with Article 8 rights, as the notification can no longer be made in writing and must be given in person at a police station. This imposes a considerable burden, particularly on frequent travellers, and carries with it the risk that the information could be communicated to third parties. This greater extent of interference has an effect upon the proportionality of notification require-ments which cannot be reviewed.

(5) The extreme importance of notification requirements in preventing sexual reoffend-

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ing is recognised. However, if an offender no longer poses any risk and can demon-strate thus, there is no advantage in subjecting them to supervision or management that represents a significant interference with their Article 8 rights.

(6) There is no evidence before the court to demonstrate that it is not possible to identify sexual offenders who no longer pose any risk of reoffending. Equally, there is no evi-dence to demonstrate that it is possible, but this uncertainty in itself cannot render notification requirements for life without review proportionate. There are a number of situations in which the degree of risk of reoffending does have to be assessed in relation to sexual offenders (Sexual Offences Act 2000, Sexual Offences Act 2003 and Criminal Justice Act 2003 considered). Therefore, there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continu-ance of notification requirements is unjustified. The legislature could impose a high threshold for review. Further, some countries already operate systems allowing for review of sexual offender notification requirements.

(7) Accordingly, the notification requirements constitute a disproportionate interference with Article 8 rights because there is no provision for individual review of the requirements.

Observations

Per Lord Rodger:

(1) The proportionality of the requirement to provide information to the police should be judged by reference to proper use of that information, not improper use. It is of course true that the information may be wrongly disclosed to third parties, but this is a risk that applies to all information disclosed to official authorities, such as tax information supplied by ordinary citizens to HM Revenue and Customs. Similarly, although the requirement to provide the information in person represents an increased burden, this does not render the requirement disproportionate.

(2) A right to review of notification requirements is especially pertinent in the case of child offenders such as, in this case, F, who was eleven years old at the time of his offence, given that there is arguably a greater possibility that children will grow out of their behaviour.

for the appellant: james eadie qc and jeremy johnson; instructed by the treasury solicitors for the first respondent: hugh southey qc and adam straw; instructed by stephensons for the second respondent: tim owen qc and pete weatherby; instructed by irwin mitchell for the first intervener: lord boyd of duncansby qc and james mure qc; instructed by the scottish government legal directorate litigation division for the second intervener: aidan o’neill qc and christopher pirie; instructed by balfour & manson

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[2010] uksc 17; [2010] 2 wlr 992; [2011] 1 ac 331; [2010] 2 all er 707; (2010) 113 bmlr 209; [2011] ac 331


Refugees definition | exclusion | complicity in war crimes | character of organisation belonged to insufficient

R (ON THE APPLICATION OF JS (SRI LANKA)) (RESPONDENT) V SECRETARY OF STATE FOR THE HOME DEPARTMENT (APPELLANT) supreme court united kingdomlord hope, lord rodger, lord walker, 17 mar 2010lord brown and lord kerr JS was a 28-year-old Sri Lankan Tamil who had held a number of positions in the Intelligence Division of the Liberation Tigers of Tamil Eelam (LTTE), which was regularly engaged in military operations against the Sri Lankan army. In October 2006 he was sent on a secret mission to Colombo but in December 2006 he learned that his presence in the city had been discovered and arrangements were made for him to leave the country. JS arrived in the UK on 7 February 2007 and applied for asylum two days later. His application (and a subsidiary application for humanitarian protection based on the fear of mistreatment if returned) was refused by SSHD on 14 September 2007, solely by refer-ence to Article 1F(a)1 of the Refugee Convention 1951 (‘the Convention’). Relying on the Immigration Appeal Tribunal (AIT) decision in Gurung [2002] UKIAT 04870 (starred), SSHD determined that JS was excluded from Convention protection under Article 1F(a) because his voluntary membership and command responsibility within LTTE made him complicit in war crimes and crimes against humanity (‘war crimes’). JS sought judicial review of SSHD’s decision. The Court of Appeal quashed the decision and held that the case should be re-determined. SSHD appealed to the Supreme Court.

The Supreme Court was required to address three main issues: (a) whether the Court of Appeal was right to quash SSHD’s refusal decision, (b) whether the principles laid down in Gurung (relating to the approach for courts to follow in Article 1F cases) were correct,

1. Article 8 provides: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in

a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

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and (c) whether the Court of Appeal correctly interpreted war crimes liability under Article 1F(a) as encompassing no more than joint enterprise liability akin to that in respect of domestic law crimes (R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 364 at [119] considered).

In dismissing the appeal and ordering SSHD to direct herself in accordance with the current judgment (and not the Court of Appeal’s judgment) in re-determining JS’ applica-tion, it was held that:

(1) Whatever view is taken in relation to issues (b) and (c), SSHD’s reasoning in dismiss-ing JS’s asylum application is insupportable and thus the refusal decision cannot stand. LTTE cannot be said to be an organisation which is ‘predominantly terrorist in character’ or ‘an extremist international terrorist group’ (Gurung (above) at [105] and UNHCR, ‘Addressing Security Concerns without Undermining Refugee Protection: UNHCR’s Perspective’ (2001) at [18] applied). There can therefore be no presumption that JS’s voluntary membership amounted to ‘personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question’, as was stated in SSHD’s decision letter (Gurung (above) applied). Similarly, JS’s ‘command responsibility’ within LTTE was not a basis for regarding him as responsible for war crimes. JS was in command of a combat unit only and there was never any suggestion of liability under Article 28 of the Rome Statute of the International Criminal Court (‘the ICC Statute’). Furthermore, military action against government forces is not in itself to be regarded as a war crime (KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 applied).

(2) The better case against JS arises from the three years when he led a mobile unit transporting military equipment and personnel through the jungle which enabled members of the Intelligence Division to go armed in plain clothes to Colombo. As noted in Gurung (above) at paragraph 108: ‘If [the asylum seeker] has transported explosives for LTTE combatants in circumstances where he must have known what they were to be used for, there may well be a serious [Article] 1F issue’.

(3) The guidance given on the application of Article 1F of the Convention in Gurung should not in future be given the same high standing as it has hitherto enjoyed. Attempting to create a sub-category amongst organisations engaging in terrorism of those ‘whose aims, methods and activities are predominantly terrorist in character’ is unhelpful. Equally, it is unhelpful to suggest that membership of one of these groups gives rise to a presumption of criminal complicity (Gurung (above), UNHCR ‘Addressing Security Concerns’ (above) and Canadian authority considered).

(4) Rather than focusing on the sub-categorisation of an organisation, it is preferable to focus from the outset on what should be the determining factors in any Article 1F case. These, in no particular order, are: (i) the nature and (potentially of some importance) size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned; (ii) whether, and if so by whom, the organisation was proscribed; (iii) how the asylum-seeker came to be recruited; (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it; (v) his position, rank, standing and influence in the organisation; (vi) his knowledge of the organisation’s war crime activities; and (vii) his own personal

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involvement and role in the organisation, including particularly whatever contribu-tion he made towards the commission of war crimes. The nature of the organisation itself is only one of the relevant factors which must be taken into account. Looking for a presumption of individual liability, rebuttable or not, should be avoided.

(5) Placing each case along a ‘continuum’ for war crimes, as suggested at paragraphs 111-113 of Gurung, is unhelpful as there are too many variable factors involved in each individual case. These paragraphs also introduce considerations which have no place at all in determining how Article 1F applies. For example, considering if the organisa-tion in question is promoting government which is ‘authoritarian in character’ or is intent on establishing ‘a parliamentary, democratic mode of government’ does not help to determine whether or not someone is guilty of war crimes. Whether or not an action is a war crime is not dependent on the aims of those concerned; actions cannot be considered war crimes merely because they conflict with western liberal democratic values.

(6) Article 1F of the Convention disqualifies from refugee status both those who person-ally commit war crimes and those who are complicit in such crimes, as provided for by Article 12(3) Qualification Directive (2008/83/EC), Article 25(3)(b),(c)&(d) ICC Statute and Article 7(1) Statute of the International Criminal Tribunal for the former Yugoslavia. The language employed by these provisions is wider than any recognised basis for joint enterprise criminal liability under domestic law (BVerwG 10C 48.07 (14 October 2008) and McMullen v INS 685F 2d 1312 (9th Cir 1981) considered). Criminal responsibility is only attached to those with the necessary mens rea, but if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, then under Article 30 ICC Statute he is taken to have acted with both knowledge and intent (Prosecutor v Tadic (1999) 9 IHRR 1051 considered). The Court of Appeal’s judgment appears to confine Article 1F liability to the same sort of joint criminal enterprises as would result in convictions under domestic law, which is too narrow an approach. In determining complicity for the purposes of Article 1F, courts should not focus on specific identifiable crimes; rather, the focus should be on wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes.

(7) An accused should be disqualified from the protection afforded by Article 1F ‘if there are serious reasons for considering him to have voluntarily contributed in a signifi-cant way to an organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose’.

Per Lord Hope:

(1) Mere membership of an organisation that is committed to the use of violence for political ends is not enough to exclude an appellant from Convention protection, and indeed both parties accept this (McMullen v INS (above), Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173 at pp 178-180, Prosecutor v Tadic (above) and Articles 25(3)(c)&(d) and 30 ICC Statute considered). The problem is in formulating what more is needed to bring the person within Article 1F(a), i.e. determining how close a person needs to get to proscribed activities before he is excluded from protection.

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(2) The AIT in Gurung erred in suggesting that voluntary membership of an organisation whose ‘aims, methods and activities are predominantly terrorist in character’ gives rise to a presumption of personal and knowing participation, or at least acquiescence, amounting to complicity. Rather, Lord Brown’s test for complicity (above) is correct. The words ‘in a significant way’ and ‘will in fact further that purpose’ provide the key to the exercise: these are the essential elements which will infer personal responsibil-ity on the applicant. The focus is on the facts of each case and not on any presumption that may be invited by mere membership.

Per Lord Kerr:

The critical question in this case is ‘what more is required beyond mere membership of an organisation which commits war crimes for a person to be excluded from the protec-tion of the Refugee Convention’. What must be shown is that ‘the person concerned was a knowing participant or accomplice in the commission of war crimes’. An applicant’s role in the organisation is relevant in identifying whether or not there is a sufficient level of participation to accord the relevant liability, but it is not determinative of liability. Courts must concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participa-tion is established. In order to be excluded from Article 1F protection, it must be shown that the applicant’s participation went beyond mere passivity or continued involvement in the organisation after acquiring knowledge of the war crimes.

for the appellant: tim eicke and jasbir dhillon; instructed by the treasury solicitors for the respondent: rabinder singh qc, shivani jegarajah and michelle butler; instructed by k ravi solicitors

[2010] uksc 15; [2011] 1 ac 184; [2010] 2 wlr 766


definition | persecution | sexual orientation | discrimination against homosexuals in army

SMITH V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) federal court canadade montigny j 20 nov 2009 S, a homosexual woman, requested refugee protection pursuant to ss 96 and 97(1)2 of the Immigration and Refugee Protection Act (IRPA) after she deserted the US Army, claim-ing fear of persecution because of her sexual orientation and a risk to her life or of cruel and unusual treatment or punishment if returned to the US. During her time stationed in Fort Campbell, Kentucky, S experienced harassment and threats of violence because

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of her sexual orientation.

Her claim was denied by the Refugee Protection Division of the Immigration and Refugee Board (RPD) on the grounds: (a) that she failed to present ‘clear and convinc-ing’ proof of the inability of the US to protect her, as required by case law (Canada (Attorney General) v Ward [1993] 2 SCR 689 pp 724-725 and Hinzman v Canada (Minister of Citizenship and Immigration) 2007 FCA 171 applied); and (b) that she did not satisfy her burden of establishing a serious possibility of persecution on a Convention ground or that it was more likely than not that she would be tortured or face a risk to her life or risk of cruel and unusual treatment or punishment upon return to the US, as is required to claim IRPA protection.

Instead, the RPD found that state protection would be adequate protection for S. It further found that S would face prosecution not persecution if returned to the US and that there was no credible evidence that she would not receive a fair hearing or would receive a more severe sentence because of her sexual orientation. The RPD relied on evi-dence accepted in Hinzman (above) that deserters were dealt with administratively and not prosecuted unfairly. The RPD also relied on Hinzman when it concluded that the Uniform Code of Military Justice (UCMJ) is a law of general application that is applied in a non-discriminatory fashion. S appealed to the Federal Court for judicial review of the RPD decision.

In allowing the application for judicial review, it was held that:

(1) S’s claim is predicated on her sexual orientation rather than her status as a conscien-tious objector and thus her situation can be distinguished from that of the applicant in Hinzman (Hinzman (above) distinguished). Article 25 of the UCMJ still makes it an offence to have homosexual relations and therefore S could be court-martialled not only for deserting the Army but also for being gay. The RPD’s failure to appreciate the distinction between S’s case and that of Hinzman meant that its approach to S’s case was flawed.

(2) S did provide evidence that she attempted to avail herself of state protection, stating that she approached her superiors to obtain a discharge through revealing her sexual-ity. Though case law requires the applicant to follow up on her complaint, the RPD failed to consider the special circumstances of the case. The Army involves ‘uncondi-tional obedience to the hierarchy’, S provided evidence of fear that her superiors were involved in her harassment and there was also documentary evidence that superiors in the US Army are often complacent and/or active in the harassment of homosexu-als. All of these factors should have been taken into consideration when determining whether S’s attempts to avail herself of state protection were adequate.

(3) The RPD found that the murder of Private Winchell – a gay soldier beaten to death with a baseball bat whilst also stationed in Fort Campbell – was an isolated incident that was severely punished. However, the RPD provided no evidence to support this speculation. Conversely, S provided evidence that violence against homosexuals in the army is commonplace and tolerated, and further that she had received threats that she would meet the same fate at Private Winchell. This evidence was crucial in substantiating the objectiveness of S’s fear and the ability of the State to protect her.

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However, the RPD did not even consider S’s evidence, let alone analyse it or provide reasons for its rejection.

(4) The RPD erred in relying on a controversial passage from the Hinzman decision stating that: ‘94% of deserters are dealt with administratively and merely receive a less-than-honorary discharge’. This was not evidence properly before the RPD and additionally S was not given the necessary opportunity to challenge it. Furthermore, counter-evidence presented by S was not adequately assessed and, in any event, S’s claim was brought on a different basis to that in Hinzman. There were therefore multiple errors in the RPD’s approach to this aspect of the evidence.

(5) Evidence presented by S to support her claim that application of the UCMJ would result in her persecution was not dealt with appropriately. Firstly, the RPD rejected without adequate explanation expert evidence from an attorney. Secondly, other rel-evant evidence was simply ignored, including:

(a) Evidence that S could be prosecuted for being gay under the UCMJ despite the fact that the US Supreme Court has declared unconstitutional the criminalisation of consensual, same-sex ‘sodomy’ between adults;

(b) The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, which provides that acts of abuse and discrimination, when gone unpunished, may form the basis of a refugee claim, and that ‘being com-pelled to forsake or conceal one’s sexual orientation, where this is instigated or condoned by the State, may amount to persecution’;

(c) Evidence to suggest that military judges are not independent, that there is no uniform method of sentencing for military deserters and that homosexuals suf-fer unequal treatment before court martials. Whilst this evidence contradicts Hinzman, it should have been analysed in light of the differing facts in S’ case, most importantly the basis of the claim being sexual orientation not conscien-tious objection.

(6) Taking into account the errors made by the RPD in its assessment of the evidence, its conclusions in S’s case were unreasonable. Accordingly, S’s claim for judicial review is allowed.

for the appellant: jamie liew; instructed by galldin liew barristers & solicitors, ottawa for the respondent: brian harvey; instructed by mr john h sims qc, deputy attorney general of canada, ottawa

2009 fc 1194; [2011] 1 fcr 36

Full text of judgment at http://www.canlii.org/en/ca/fct/doc/2009/2009fc1194/2009fc1194.html

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Religion education | school admissions policy based on jewish descent was racially discriminatory | See equality – r (on the application of E) v Governing Body of JFS & Ors

Remedies constitutional motion | specific rather than general rights should be invoked | See housing – Nokotyana & Ors v Ekurhuleni Metropolitan Municipality & Ors

constitutional petition | alternative remedy | referral to truth commission not required | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

constitutional petition | delay | waiting for release from prison not unreasonable | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

constitutional petition | evidence | sufficient basis for claim provided | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

constitutional petition | limitation period inapplicable to damages claim | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

damages | award in respect of failing by judicial officer | refusal not required to protect independence | See remedies – McKean v The Attorney-General for and on behalf of The

Department for Corrections & Anor

damages | delay in bringing accused to trial | approach to assessment

1. Article 1F(a) provides: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against human-ity, as defined in the international instruments drawn up to make provision in respect of such crimes […].’

2. Section 96 provides: ‘A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a par-ticular social group or political opinion (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

Section 97(1) provides: ‘A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treat-ment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.’

refugees | religion | remedies

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OATILE V ATTORNEY GENERAL high court (lobatse) botswanadingake j 2 mar 2010

O was arrested on 13 February 1995 and charged with murder, a week after the death of the victim. He was held in custody until 13 August 1998, when he was released. The charge against him was withdrawn but the prosecution retained liberty to re-prosecute, on the basis that at the time a key witness was too young to appreciate the nature of an oath or to take the stand as a witness. O was recharged in 2004, brought to trial in 2007 and found not guilty (he was not in custody between being recharged and acquitted). Therefore, the time between O first being charged and the conclusion of the trial was over 12 years. The parties did not attribute the delay to anyone in particular and there was no evidence that O had contributed to the delay. The questions facing the judge in this trial were whether the delay constituted a violation of O’s fundamental right to be tried within a reasonable time, under s 10(1)1 of the Constitution, and if so, to what damages, constitutional or otherwise, would he be entitled. Section 10(1) provides that, unless the charge is withdrawn, a suspect has a right to, inter alia, ‘a fair hearing within a reasonable time’. O argued that the delay was unreasonable and breached his constitutional rights, and thus that he was entitled to a public law constitutional damages remedy under s 182 of the Constitution. The court noted that the question of constitutional damages had not previously come before the courts of Botswana.

In determining that O’s rights under s 10(1) of the Constitution had been breached and awarding damages for this breach, it was held that:

(1) Section 10(1) of the Constitution operates to ensure that the prosecutorial authorities bring suspected offenders to trial within a reasonable time. In determining whether an individual has been tried within a reasonable time, the clock starts ticking from the point of arrest (in this case 13 February 1995) and continues until the accused is tried or the charge against him permanently withdrawn. If the State withdraws the charge and then later reinstates it, this does not stop the clock for the intervening period and thus enable the State to avoid liability for failure to comply with s 10(1) (Sejammitlwa and Others v The Attorney General and Others [2002] 2 BLR 75 CA and In re Mlambo [1992] 4 SA 144 applied).

(2) The court has to undertake a balancing exercise, in which the conduct of both the prosecution and the accused are weighed against each other, in order to determine whether there has been unreasonable delay. Factors including the length of delay, the reasons the State assigns for the delay and the prejudice the accused has suffered or is likely to suffer must be taken into account when making this value judgment. However, this is not an exhaustive list and whether a trial was within a reasonable time will depend on the circumstances of each individual case (Busi v The State [1997] BLR 69 applied).

(3) No explanation for the delay in this case has been provided and thus it must be concluded that the delay was unreasonable, in violation of O’s constitutional right to be tried within a reasonable time (Sechele v The State [2006] 2 BLR 619 considered). If the prosecutorial authorities fail in their duty to bring an accused to trial within a reasonable time then they must be held accountable and sanctioned accordingly.

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(4) The term ‘redress’ in s 18(1) of the Constitution is sufficiently wide to include a right to constitutional damages (Attorney General v Moagi [1982] 1 BLR 124, Petrus and Another v The State [1984] BLR 14, Dow v The Attorney General [1992] BLR 19 and Diau v Botswana Building Society [2003] 2 BLR 409 considered). Where common law remedies are inadequate, courts must fashion appropriate remedies or develop the common law to provide a remedy in damages for breach of the fundamental rights and freedoms of individuals. Constitutional damages constitute a remedy independent of those available in private law and the fact that an individual may have a claim to the latter does not preclude his also claiming for the former (Maharaj v the Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385, Attorney General of Trinidad and Tobago v Siewchand Ramanoop [2005] UKPC 15 and MEC, Department of Welfare, Eastern Cape v Kate [2006] 4 SA 478 applied, and other domestic and international jurisprudence considered). In this case, O is entirely justified in seeking constitutional damages as a remedy.

(5) The objective of damages as a remedy for constitutional infringement is to vindicate the Constitution and deter future violations. The focus should be on compensating the individual whose rights have been breached (Tamara Merson v Drexel Cartwright and the Attorney General of Bahamas Privy Council Appeal No. 61 of 2003 [2005] UKPC 38 and Kodellas v Sask Human Rights Commission [1989] 5 WWR 1 considered). However, punitive damages may be granted where the State has engaged in reckless conduct or shown callous disregard of individual rights (Siewchand Ramanoop and The Attorney General of Trinidad & Tobago HCA No 5-47 of 2001 considered).

(6) In assessing constitutional damages, the court may use the analogy of delict when dealing with injured feelings, distress and mental anguish. The amount to be awarded is within the discretion of the judge, but must not be too conservative or extravagant, must be fair, find support in common sense and legal precedents and not be insensitive to human suffering. O has suffered restriction on his liberty and consequent inconvenience, interference with his ability to earn a living, undue stigma and mental distress and anguish. The State has offered no reasonable explanation for the delay and the violation of O’s rights was a serious one. In the circumstances P100,000 is an appropriate constitutional damages award.

for the plaintiff: ewf luke ii; instructed by luke and associates for the defendant: b mokakangwe; instructed by the attorney general’s chambers

[2010] bwhc 10

Full text of judgment at http://www.saflii.org/bw/cases/BWHC/2010/10.html

damages | exemplary | award not required following change of government and reform efforts | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

damages | torture | act of state doctrine | inapplicable to grave breaches of human rights | See accountability & impunity – Habib v Commonwealth of Australia

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damages | unfair disciplinary proceedings | inappropriate where judicial review was effective remedy

MCKEAN V THE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE DEPARTMENT FOR CORRECTIONS & ANOR court of appeal new zealandglazebrook, chambers and o’regan jj 25 nov 2009 In July 2005 M, then an inmate at Paparua Prison, was requested to give a urine sample for a drugs test. M was charged with tampering with the sample. On 5 September 2005 the Visiting Justice heard the charge and found it proved. M was sentenced to five days cell confinement as well as a 28-day loss of privileges. On 19 September 2005 M filed an application for judicial review and on 20 September 2005 the High Court made an interim order deferring M’s penalty pending full hearing of the application. Before Fogarty J, the AG conceded that the hearing before the Visiting Justice was invalid due to breaches of natural justice. Accordingly, the High Court declared that the decision of the Visiting Justice was made unfairly and should be quashed. M was released from prison before the High Court judgment and thus there was no possibility of a re-hearing of the tampering charge.

However, the High Court dismissed M’s claim for compensation on the ground that Visiting Justices cannot be held to account by the Crown and thus compensation is not available to prisoners for breaches of the Bill of Rights by Visiting Justices. The High Court held (a) that the narrow ratio of Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 should be adopted to protect judicial independence (namely that the Crown is directly responsible only for a breach of the Bill of Rights by the executive, as opposed to the wider ratio that the Crown is directly liable for all breaches of the Bill of Rights), and (b) that even if the wider ratio were adopted then it would not be appropriate to award compensation to M as the efficacy of the judicial review was adequate redress for the errors in the prison disciplinary hearing.

M appealed to the Court of Appeal, arguing that the wider ratio of Baigent’s Case should have been adopted and that compensation should have been awarded given the severe breaches of natural justice in his case. M contended that Bill of Rights protections are especially important in prison disciplinary hearings because there is no appeal from the decision of a Visiting Justice and, although judicial review is available, it is much more complicated than an appeal. AG argued that the High Court was correct to adopt the nar-row ratio of Baigent’s Case, meaning that compensation is not available to M, and that in any event judicial review provided an effective and appropriate remedy and thus compen-sation would be inappropriate.


(1) The wider ratio of Baigent’s Case ought to have been adopted by the High Court. Therefore, compensation is available for breaches of the Bill of Rights by judicial officers (Attorney-General of New Zealand v Chapman [2009] NZCA 552 applied).

(2) The remaining question is whether compensation should have been awarded in this case. Damages for a breach of the Bill of Rights should only be awarded ‘where there

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is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitu-tional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse’ (dicta of Blanchard J (at [261]) and Tipping J (at [298]) in Taunoa v Attorney-General [2008] 1 NZLR 429, Brown v Attorney-General [2005] 2 NZLR 405 at [100]-[101] (and separate dicta of William Young J at [141]-[142]), Attorney-General v Udompun [2005] 3 NZLR 204 at [168]-[170] and Combined Beneficiaries Union v Auckland City COGS Committee and Others [2009] 2 NZLR 56 at [56]-[58] and [70]-[71] considered).

(3) Judicial review was an ‘effective, appropriate, proportionate and sufficient’ remedy for the breaches of natural justice that occurred in M’s case. No delay was attribut-able to the Department for Corrections, M’s punishment was suspended within one day of him filing an application for judicial review, the Visiting Justice’s decision was quashed by the High Court and M avoided a rehearing (which may have found him guilty) on account of his release from prison.

(4) Natural justice is important in the prison disciplinary system but no more so than in other contexts. Despite the gravity of the breaches in question, they were no more serious than those in other cases that have come before the courts. Furthermore, the processes for an appeal are essentially the same as those for judicial review and in the latter the availability of interim orders may in fact provide an additional advantage.

(5) For all of the above reasons, the High Court was clearly correct in not awarding com-pensation to M.

for the appellant: p n allan and k h cook; instructed by g c knight, crown law office, wellington for the first respondent: d b collins qc, f r j sinclair and c a griffin

[2009] nzca 553

Full text of judgment at http://www.nzlii.org/nz/cases/NZCA/2009/553.html

discontinuance of prosecution | not required by constitutional breaches | See fair hearing – Mugoya Kyawa Gaster v Attorney General

mandamus | accessibility of polling stations | requirements for disabled prescribed | See disability – Hughes & Anor v Elections Canada

repatriation | person detained abroad | order would infringe prerogative power | See liberty & security – Canada (Prime Minister) v Khadr

sentencing | excessive use of force | reduction below minimum for breach of rights could be justified

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R V NASOGALUAK supreme court canadamclachlin cj, binnie, lebel, deschamps, fish, 19 feb 2010abella, charron, rothstein and cromwell jj

N was suspected of drink-driving and resisted arrest following a high-speed pursuit by police. He was punched twice while being forced out of his car, was dealt a heavy blow to the head while being subdued, and was punched a further two times in the back whilst pinned to the ground by one of the officers. Subsequently at the police detachment offi-cers did not report the force used during the arrest, nor was N offered medical attention. Although N had no obvious injuries and did not expressly request medical aid, he told officers he was hurt and was seen crying, moaning and complaining of being unable to breathe. Upon his release the following morning, N checked himself into hospital and was found to have suffered broken ribs and a punctured lung, requiring emergency surgery.

N had given a breath sample placing him over the legal blood-alcohol limit and subse-quently entered a guilty plea to charges of impaired driving and flight from police. At sentencing the trial judge held that police had breached N’s rights in their use of exces-sive force during his arrest, in particular his rights under s 73 of the Canadian Charter of Rights and Freedoms (‘the Charter’). To account for this violation, the trial judge invoked s 24(1)4 of the Charter and reduced N’s sentence to concurrent 12-month conditional dis-charges on each count and a one-year driving ban, taking the sentence below the statutory minimum for the impaired driving offence. The majority of the Court of Appeal upheld the trial judge’s findings on s 7 and his decision to reduce the sentence under s 24(1), but held that there was no discretion to reduce a sentence below a statutory minimum. The court thus set aside the conditional discharge for the impaired driving offence and imposed the minimum fine set out by s 255(1) of the Criminal Code. They did not interfere with the conditional discharge for the flight from police offence, as this offence did not carry a mandatory minimum punishment.

In the Supreme Court, the Crown appealed against (a) the Court of Appeal’s finding that N’s arrest and detention involved a breach of s 7 and (b) the failure of the Court of Appeal to vary the conditional discharge for the flight from police offence. The Crown argued that s 24(1) should be exercised in line with statutory and common law principles of sentenc-ing, meaning that the original sentence for impaired driving was illegal (as it went below a statutory minimum) and that, although legal, the sentence for flight from police was demonstrably unfit. N argued that the lower courts were correct in finding a s 7 breach and that s 24(1) permits the reduction of sentences below the generally accepted range. Accordingly, N cross-appealed against the Court of Appeal’s imposition of the statutory minimum fine for the impaired driving offence, arguing that the court’s broad discretion permits going below statutory minimums in order to remedy Charter breaches.

In dismissing the appeal and cross-appeal, it was held that:

(1) While s 25(1) of the Criminal Code permits the use of force by police officers in order to effect a lawful arrest, this is constrained by the principles of proportionality, neces-sity and reasonableness. Force that is intended or likely to cause death or grievous

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bodily harm is prohibited under s 25(3) of the Criminal Code, unless this is objectively necessitated by self-protection or the protection of another person.

(2) The lower courts did not err in concluding that the police used excessive force in effecting N’s arrest as there was sufficient evidence to support this finding: N had been pinned to the ground when he received his most severe injuries, a police officer admitted at trial that the third punch was unnecessary and the punches were force-ful enough to break N’s ribs and puncture his lung. The arrest involved a substantial interference with N’s physical and psychological integrity and constituted a breach of s 7 of the Charter (R v Morgentaler [1988] 1 SCR 30 and Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 considered). The excessive force used by the police officers, compounded by their failure to report the force used and to ensure that N received medical attention, represented a threat to N’s security of person not in line with any principle of fundamental justice.

(3) The principle of proportionality is of fundamental importance to the sentencing process (R v Solowan 2008 SCC 62 at [12] considered). The principle operates in two ways: it restricts the maximum sentence to what is just and appropriate in the circumstances, whilst maintaining a punitive function which seeks to ensure that offenders are held responsible for offences and that their actions and the harm caused are condemned.

(4) Taking into account the wide discretion available under ss 718 and 718.2 of the Criminal Code, a sentencing judge may take into account police or state misconduct in determin-ing a sentence without having to invoke s 24(1) of the Charter, even in circumstances where Charter rights have been breached, provided that the misconduct is relevant to the offence and/or the offender (R v Munoz 2006 ABQB 901 and R v Pigeon (1992) 73 CCC (3d) 337 considered). As a general rule it is neither useful nor necessary to invoke s 24(1) in adjusting sentences to account for unconstitutional acts by state agents.

(5) Whilst it is true that in numerous cases sentence reductions have been ordered as s 24(1) remedies, the same results could have been obtained without recourse to s 24(1) (R v Charles (1987) 61 Sask R 166 and several other cases considered). Furthermore, the general principles of sentencing permit reduction of a sentence on account of state misconduct even where the misconduct is not sufficiently serious to constitute a Charter breach (R v Pigeon (above) and a number of other cases considered).

(6) Judicial discretion in sentencing does have limits. Where there is a minimum sen-tence set by statute judges must comply with this; they have no discretion to override such a clear statement of legislative intent. The discretion is also fettered by principles laid down by case law in terms of general ranges of sentences. However, courts are not obliged to comply with these ranges in the same way as they are statutory mini-mum sentences, and may thus order a sentence outside of the range if this is war-ranted in the circumstances. The Court of Appeal’s sentence for the flight from police offence was fit and appropriate in the circumstances.

(7) However, a sentence reduction below a statutory limit may potentially be granted under s 24(1) where either (a) the limit is found to be unconstitutional or (b) as a remedy for particularly egregious conduct by state agents in relation to the offence and the offender. In the present case neither of these circumstances existed and thus

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there was no justification for going below the mandated statutory minimum in sen-tencing N for the impaired driving offence.

for the appellant/respondent on cross-appeal: susan d hughson qc; instructed by the attorney general of alberta, edmonton for the respondent/appellant on cross-appeal: laura k stevens qc and graham johnson; instructed by dawson stevens & shaigec, edmonton for the intervener the director of public prosecutions of canada: kevin wilson and moiz rahman; instructed by the public prosecution service of canada, toronto for the intervener the attorney general of ontario: benita wassenaar; instructed by the attorney general of ontario, toronto for the intervener the attorney general of manitoba: cynthia devine; instructed by the attorney general of manitoba, winnipeg for the intervener the canadian civil liberties association: andrew k lokan and danny kastner; instructed by paliare, roland, rosenberg, rothstein, toronto for the intervener the criminal lawyers’ association (ontario): clayton ruby and gerald chan; instructed by ruby & shiller, toronto for the intervener the criminal trial lawyers’ association: nathan j whitling; instructed by parlee mclaws, edmonton

2010 scc 6; [2010] 1 scr 206


Reputation defamation | matter of public interest | responsible communication defence created | See expression – Grant & Anor v Torstar Corp & Ors

1. Section 10(1) provides: ‘If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognized by law.’

2. Section 18 provides: ‘(1) Subject to the provisions of subsec-tion (5) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress. (2) The High Court shall have original jurisdiction— (a) to hear and determine any application made by any person in pursuance of sub-section (1) of this section; or (b) to determine any question

arising in the case of any person which is referred to it in pur-suance of subsection (3) of this section, and may make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution. […]’


4. Section 24(1) provides: ‘Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.’

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separation of powers | social security

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Separation of powers independent judiciary | appointment | consultation requirement breached

AHMED & ORS V FEDERATION OF PAKISTAN supreme court pakistanjan, ahmed and khawaja jj 13 feb 2010 The Government of Pakistan issued two notifications announcing the appointment of two judges pursuant to the President’s powers under Article 1771 of the Constitution. The first notification stated that Judge A (Chief Justice of the Lahore High Court) was to be appointed as a judge of the Supreme Court with immediate effect. The second notification stated that Judge B (judge of the Lahore High Court) was to succeed Judge A as Acting Chief Justice of the Lahore High Court effective on the date of the first notification.

In suspending the notifications and ordering that no steps be taken towards administer-ing oaths to either judge, it was held that:

(1) Article 177 requires the President to consult with the Chief Justice of Pakistan before appointing a judge to the Supreme Court. The Court has no record of such a consul-tation concerning Judge A. Therefore, Judge A was appointed to the Supreme Court in violation of the Constitution. Consequently the notification of his appointment is suspended and he must not be sworn in as a judge of the Supreme Court. Judge A must remain Chief Justice of the Lahore High Court until further court order.

(2) As Judge A is to remain in his current position, there is no vacancy for an Acting Chief Justice of the Lahore High Court. Therefore, the notification relating to Judge B’s appointment is suspended and he must not be sworn in as Acting Chief Justice of the Lahore High Court. Judge B must remain a judge of the Lahore High Court until further court order.

constitution petitions no. 2, 3 & 4 of 2010

Full text of judgment at http://www.supremecourt.gov.pk/web/user_files/File/Const.P.2,3and4-II.pdf

Social securityapplicant with outstanding application for indefinite leave to remain | refusal having effect of forcing departure unjustified | See family life – Birmingham City Council v Clue

1. Article 177 provides: ‘(1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges

shall be appointed by the President after consultation with the Chief Justice. […]’

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torture | women

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Torture abuse during detention | claims not disputed | damages awarded | See cruel, inhuman or degrading treatment – Weheire v Attorney-General

complicity in ill-treatment by foreign officials | act of state doctrine | inapplicable to grave breaches of human rights | See accountability & impunity –

Habib v Commonwealth of Australia

Women discrimination | marriage | bar on continued employment afterwards unjustified but constitutional | See equality – Johnson and Balwant v The Attorney General of Trinidad and Tobago

divorce | maintenance | muslim woman | claim possible until re-marriage

SHABANA BANO V IMRAN KHAN supreme court indiadeepak verma and b sudershan reddy jj 4 dec 2009 B, a Muslim woman, was married in 2001 to K, according to Muslim rights. B moved into the matrimonial home but K demanded more dowry. After some time, B became preg-nant. K took B back to her parental home and threatened that B would not be allowed back to the matrimonial home unless more dowry was paid. B delivered a child at her parental home but K still refused to allow her to return. K divorced B in accordance with Muslim law in 2004. B initiated proceedings for maintenance against K under s 125 of the Code of Criminal Procedure (CCP). At the Family Court, K contended that he was not required to pay maintenance after divorce and after the period of iddat under the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986 (‘the Muslim Women Act’). The Family Court partly allowed B’s application, granting maintenance from the date B instituted the petition until the expiration of the period of iddat (but refusing it thereafter). On appeal to the High Court of Madhya Pradesh, the earlier decision of the Family Court was substantially upheld. At the Supreme Court, B contended that the courts below erred in (a) holding that a petition under s 125 CCP was not maintainable after divorce and (b) denying maintenance after the expiry of iddat. B argued that the courts below did not properly consider the provisions of the Family Courts Act 1984 (‘the Family Courts Act’).

In allowing the appeal, quashing the orders made by the lower courts and remitting the matter back to the Family Court for consideration, it was held that:

(1) A divorced Muslim woman is entitled to claim maintenance from her ex-husband, even after the expiry of iddat, as long as she does not remarry (Danial Latifi & Anor v Union of India (2001) 7 SCC 740 and Iqbal Bano v State of UP & Anor [2007] INSC

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682 applied). Maintenance payments should not be restricted to the iddat period only.

(2) By virtue of the Family Courts Act: (a) the family courts have exclusive jurisdiction over proceedings relating to maintenance, including applications filed under s 125 CCP, and (b) the Family Courts Act overrides all other enactments regarding mainte-nance, including the Muslim Women Act. The lower courts confused the provisions of the Family Courts Act, the Muslim Women Act and the CCP, which caused them to erroneously reject B’s claim.

(3) Consequently, the orders of the lower courts are quashed and the matter is remitted to the Family Court at Gwalior for its disposal on the merits.

for the respondent: shri s k dubey

[2009] insc 1783


marriage | bride price | custom not unconstitutional where voluntary

MIFUMI (U) LTD & ORS V ATTORNEY GENERAL & ANOR constitutional court ugandamukasa-kikonyogo dcj, mpagi-bahigeine, 26 mar 2010twinomujuni, byamugisha and kavuma jja

M, a NGO and women’s rights agency, along with 12 individuals, challenged the constitu-tionality of the customary practice, within several Ugandan tribes, of bride price as a con-dition precedent to valid marriage and refund of bride price as a condition precedent to valid dissolution of marriage. Bride price is a sum of money paid by the groom’s family to the bride’s family in consideration of the marriage. M contended that the use of the bride price practice was in violation of Articles 21 (as it offends against the principle of constitu-tional supremacy), 212 (as women are treated as mere possessions and so not as equals), 243 (as treating women as articles for market sale constitutes degrading treatment), 314 (as it interferes with the exercise of free consent to marriage) and 335 (as the practice infringes the constitutional rights specifically accorded to women), of the Constitution. AG argued that the practice did not violate the rights of women, that prospective spouses could opt for alternative marriage arrangements and that bride price agreements constituted legitimate cultural arrangements protected by Article 376 of the Constitution.

In dismissing the petition and finding that bride price arrangements are not unconstitu-tional, it was held that (Twinomujuni JA dissenting):

(1) Bride price arrangements are not unconstitutional per se. In many situations the payment of bride price is simply intended to show appreciation to the bride’s parents

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for nurturing and bringing up the bride and further the arrangement may be entered into with the full support of both prospective spouses. The Constitution does not prohibit a voluntary, mutual agreement between a bride and a groom to enter into a bride price arrangement. Rather, a man and a woman have the constitutional right to choose the bride price option as the way they wish to get married. A woman’s con-stitutional rights are not infringed by the practice and the arrangements do not fetter the free consent of parties to a marriage.

(2) There are various forms of legally recognised marriage in Uganda which do not involve bride price arrangements; however, if a person chooses to enter into a cus-tomary marriage then he or she is bound to observe the customs and rites of the relevant community, which may include the payment of bride price.

(3) The practice of refund of bride price should not be declared unconstitutional. A bride’s rights on dissolution of marriage are adequately protected by the Constitution and penal law, and women should resort to these provisions if they encounter difficulties.

(4) M’s allegation that bride price agreements increase the risk of domestic abuse is not supported by the available evidence. Domestic violence is a worldwide problem and occurs in countries where bride price arrangements do not exist. The existence of domestic abuse in some bride price cases does not justify a blanket ban on the prac-tice.

Per Mukasa-Kikonyogo DCJ:

(1) If the proposed bride and/or groom is given no alternative and is forced into a bride price agreement then this is unconstitutional under both Articles 207 and 31(3) of the Constitution, as it contravenes the right of men and women to freely and volun-tarily enter a marriage relationship. A man shall not be prevented from marrying the woman of his choice due to not being able to meet a bride price demand, nor shall a man or woman be compelled to enter into a bride price marriage. The right of men and women to enter marriages shall not be contingent upon third party demands (i.e. demand for bride price from the bride’s family).

(2) The customary practice of the husband demanding a refund of bride price on dissolu-tion of marriage is unconstitutional, as it undermines women and violates their right to equal rights within, during and at dissolution of marriage, contrary to Articles 33(6) and 31(1) of the Constitution. However, it is not necessary to declare that the entire practice of refunding bride price is unconstitutional, as the woman can pursue her grievances under Article 508 of the Constitution and civil and/or criminal proceedings.

Per Byamugisha and Kavuma JJA:

Customary marriages involving bride price arrangements are allowed and protected under Article 37 of the Constitution.

Per Mukasa-Kikonyogo DCJ and Mpagi-Bahigeine JA (Kavuma JA dissenting):

Bride price is not a custom that can be judicially noted and thus evidence is required to prove its existence.

Per Kavuma JA:

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(1) Bride price arrangements are a Ugandan custom that can be taken judicial notice of without requiring further proof, as there is legislation and case law recognising the practice (Uganda Evidence Act ss 55 and 56, Nemezio Ayiiya Pet v Sabina Onzia Ayiiya Divorce Petition No. 8 of 1973 and a number of other legislative provisions and case law considered).

(2) The effect of Article 21(5) of the Constitution is that no constitutionally protected custom can be held incompatible with Article 21. As bride price arrangements are protected by Article 37, the practice is not incompatible with Article 21. Bride price does not promote inequality in marriage; rather, it enhances equality as it promotes mutual respect and is a symbol of the value of the bride.

(3) Refund of bride price is also a constitutionally protected custom under Article 37 of the Constitution and is not per se unconstitutional. However, the wife’s contribution to the home should be taken into account in the marriage dissolution process and a failure to do this offends against Article 31(1) of the Constitution.

(4) The practice of denying a body of a deceased woman burial because of non-payment of bride price is repugnant to good conscience.

Per Twinomujuni JA (dissenting):

(1) The term ‘bride price’ in these proceedings refers to a customary practice compris-ing three elements: (a) parents or relatives of a bride demand and get paid money or property as a condition precedent to her being given to a groom in marriage; (b) the payments only move from the groom and/or his relatives to the parents of the bride (and never the other way around) and the bride has no share in it; and (c) when the marriage breaks down and is dissolved, bride price has to be refunded on demand.

(2) Under the custom of bride price, women are treated as chattels as opposed to human beings and are priced so low as to be exchanged for animals, which violates Article 33(1) of the Constitution as women are not accorded full and equal dignity of the person with men. Bride price ‘helps to perpetuate a belief in society that a man is superior to a woman, that once he buys a woman, he can batter her, humiliate her and treat her as he likes’. Further, the practice also fetters the free consent of the persons intending to marry contrary to Article 31(3) of the Constitution. Young men may not be able to marry because they have insufficient wealth to pay for a bride and young women may not be able to marry the man of their choice because of his lack of wealth. Bride price agreements perpetuate conditions of inequality contrary to Article 21 of the Constitution and also violate Articles 25(1)9 and 44(b).10

(3) Consequently, the custom of paying bride price in a customary marriage is unconsti-tutional and should be abolished. It follows that the same conclusion must be reached in relation to the refund of bride price. This latter practice is the most repugnant ele-ment of the custom, as it causes significant exploitation of women. The practice of bride price agreements serve no useful purpose in society and rather are commercial arrangements that are highly exploitative and humiliating to women.

(4) The practice of the groom and/or his relatives making payments or giving gifts to the parents of the bride to thank them for her upbringing is not unconstitutional. In this

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situation there is no demanding or haggling, the bride is not humiliated and there is no refunding on dissolution of marriage.

(5) Courts should be able to take judicial notice of the notorious fact that the practice of bride price has ‘caused untold suffering to thousands of women throughout Uganda’.

Observations

Per Mukasa-Kikonyogo DCJ:

In certain African societies, the custom of presenting a gift to the bride’s family repre-sents a token of gratitude for the part the bride’s family has played in taking care of the potential bride. Such arrangements should not be considered as payment; indeed, the bride’s family may give comparable gifts to the groom’s family. This practice arises out of ‘the value society attaches to virginity as the fountain of life that is valued as the proper form for any marriageable woman to be in’.

Per Mpagi-Bahigeine JA:

Given that there are divergent cultural beliefs and practices within different sections of society, courts should be slow to impose a blanket ban on cultural practices, as doing so will rob certain ethnic groups of their identity, dignity and self-worth. Such groups should be free to retain their treasured customs.

Per Mpagi-Bahigeine and Kavuma JJA:

The term bride price is a term coined by Europeans/colonialists who did not appreci-ate the meaning and significance of certain African cultural rites, including bride price arrangements (dicta of Hamiliton CJ in R v Amkeyo EAPLR [1917-1918] 4 considered).

Per Byamugisha JA:

Before abolishing a cultural practice on the basis that it infringes women’s rights, courts should take into account the role played by women themselves in the formation of the cul-tural practice in question. M’s argument that the majority of women dislike the practice of bride price is open to doubt.

for the first petitioner: mr rwakafuzi and ms atuki-tana for the first respondent: ms mutesi for the second respondent: in person

[2010] ugcc 2

Full text of judgment at http://www.ulii.org/ug/judgment/constitutional-court/2010/2

pregnancy | sentencing | suspended sentence more appropriate | See family life – Regina v Malasa

352

women | work

7 CHRLD

Work discrimination | disability | cerebral palsy | removal from post unjustified | See disability – Syed Bashir-ud-din Qadri v Nazir Ahmed Shah & Ors

dismissal | protection | sex workers | reinstatement not an appropriate remedy

KYLIE V COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION & ORS labour appeal court south africazondo jp, davis and jappie jja 26 may 2010

K was a sex worker, employed at a massage parlour. She was dismissed without prior hearing. The dispute was referred to arbitration. Before evidence could be heard, G, the Commissioner, enquired into whether CCMA could hear the case, as K was a sex worker

1. Article 2 provides: ‘(1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. (2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.’

2. Article 21 provides: ‘(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. (2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. (3) For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. […] (5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.’

3. Article 24 provides: ‘No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.’

4. Article 31 provides: ‘(1) Men and women of the age of eighteen years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. […] (3) Marriage shall be entered into with the free consent of the man and woman intending to marry. […]’

5. Article 33 provides: ‘(1) Women shall be accorded full and equal dignity of the person with men. (2) The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement. (3) The State shall protect women and their rights, taking into account their unique

status and natural maternal functions in society. (4) Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities. (5) Without prejudice to article 32 of this Constitution, women shall have the right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom. (6) Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.’

6. Article 37 provides: ‘Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.’

7. Article 20 provides: ‘(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State. (2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.’

8. Article 50 provides: ‘(1) Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation. (2) Any person or organisation may bring an action against the violation of another person’s or group’s human rights. (3) Any person aggrieved by any decision of the court may appeal to the appropriate court. (4) Parliament shall make laws for the enforcement of the rights and freedoms under this Chapter.’

9. Article 25(1) provides: ‘No person shall be held in slavery or servitude.’

10. Article 44(b) provides: ‘Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms— (b) freedom from slavery or servitude.’

353

work

7 CHRLD

and accordingly her employment was unlawful.1 On 11 December 2006, G handed down a ruling to the effect that CCMA had no jurisdiction to arbitrate the alleged unfair dis-missal on account of the illegality. K appealed this ruling. The judge at first instance held that although K fell within the wide definition of employee under s 213 of the Labour Relations Act 66 of 1995 (‘the LRA’), it would be contrary to the common law principle that courts should not ‘sanction or encourage illegal activity’ to allow sex workers to claim unfair dismissal. Applying the principle ex turpi causa non oritur action, which ‘prohibits the enforcement of immoral or illegal contracts’, the judge ruled that K’s employment contract was void and unenforceable. Further, the judge ruled that the constitutional protection accorded to fair labour practices in s 23(1)2 of the Constitution does not apply to someone engaged in illegal employment, as such would involve court sanction or encouragement of legally prohibited activity, particularly given that the primary rem-edy for unfair dismissal is reinstatement or reemployment. Alternatively, even if K was accorded constitutional protection, the prohibition on prostitution imposed by the Sexual Offences Act 23 of 1957 (‘the SOA’) constituted a justifiable limitation on her s 23(1) rights. K appealed this decision.

In allowing the appeal and determining that CCMA had jurisdiction to hear K’s unfair dismissal claim, it was held that:

(1) Section 23(1) of the Constitution provides that ‘everybody has the right to fair labour practices’ and the word ‘everyone’ has an unrestricted meaning (Khosa v Minister of Social Development [2004] ZACC 11 applied). Sex workers are not auto-matically stripped of their constitutional rights, such as the right to be treated with dignity, purely on account of their engagement in illegal employment activities (S v Makwanyane [1995] ZACC 3, S v Jordan and others 2002 (6) SA 642 and Goldberg and others v Minister of Prisons 1979 (1) SA 14 (A) considered). Rather, the test is what con-stitutional protections are necessarily removed given the express criminal prohibition of such activities.

(2) Given that the constitutional right to fair labour practices vests in ‘everyone’, that it can extend to persons in a non-contractual employment relationship, and that sex workers have the right to be treated with dignity by their clients and employers, it fol-lows that sex workers, including K, do enjoy rights under s 23(1) of the Constitution and by extension under the LRA (Nehawu v UCT (2003) 24 ILJ 95, SANDU v Minister of Defense (1999) 20 ILJ 2265 and a number of other South African authorities con-sidered).

(3) It is true that under South African law an illegal contract is void and that ‘the illegality arises when a contract’s conclusion, performance or object is expressly or impliedly prohibited by legislation or is contrary to good morals or public policy’ (Macqueen and Cockrell, ‘Illegal Contracts’ in Zimmermann et al, Mixed Legal Systems in Comparative Perspective at p 144 considered). Whilst the court has some discretion in determining whether or not a contract is illegal, once a contract is found to be illegal the courts will not enforce it. In addition, courts will not usually assist a party to recover under an illegal contract, although this prohibition may be relaxed to prevent injustice or where public policy requires it (Jajbhay v Cassiem 1939 AD 537 and Henry v Brandfield 1996 (1) SA 244 (D) considered).

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work

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(4) Section 23(1) was designed to ensure that the dignity of all workers should be respected and that the workplace should be predicted upon principles of social justice, fairness and respect for all (Nehawu v UCT (above) considered). To achieve this, vul-nerable employees, such as sex workers, have to be protected. There is no principled reason for denying sex workers constitutional protection of their dignity.

(5) Where a sex worker is unfairly dismissed, she is not necessarily entitled to reinstate-ment as this would violate the SOA and be contrary to public policy. Arbitrators and courts have discretion to refuse to order reinstatement where such is not reasonably practicable. However, this does not mean that a sex worker is not entitled to protec-tion under s 23(1) of the Constitution and the LRA. Additionally, compensation may not be an appropriate remedy for the substantively unfair dismissal of a sex worker, though the opposite may be true following a procedurally unfair dismissal, as this kind of compensation is independent of the loss of illegal employment (Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 considered).

(6) Only rights necessary for the implementation of the SOA are to be removed from the enjoyment of sex workers. They retain the right to their dignity and, by extension from s 23(1) of the Constitution, the LRA ensures that an employer respects these rights within the context of an employment relationship. Public policy based on the foundational values of the Constitution does not deem it necessary that these rights be taken away for the purposes of the SOA to be properly implemented.

(7) The remedy for unfairly dismissed sex workers will be decided in terms of the particu-lar circumstances of the case. Not all persons in an illegal employment relationship will be entitled to a remedy under the LRA. The court must balance the prohibition on enforcement of immoral or illegal contracts against the public policy sourced in the values of the Constitution that society should be based on freedom, equality and dignity.

Observations

Although a result of according employment status to sex workers is that such workers may form and join trade unions, they would not be entitled to participate in any activi-ties, including collective bargaining, that amount to the furthering of the commission of crime.

for the appellant: mr trengove, mr kahanovitz, ms cowen and ms mji

[2010] zalac 8; 2010 (4) sa 383 (lac); 2010 (10) bclr 1029 (lac); (2010) 31 ilj 1600 (lac); [2010] 7 bllr 705 (lac)

Full text of judgment at http://www.saflii.org/za/cases/ZALAC/2010/8.html

public service | equality before the law | hereditary appointments unjustified | See equality – Surender Paswan & Ors v State of Bihar & Ors

355

work

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public service | equality before the law | promotion system | absence of objective criteria unjustified | See equality – Aziz-ud-Din & Ors v Federation of Pakistan

public service | women | bar on continued employment after marriage unjustified but constitutional | regulations allowing termination of employment constitutional | See equality – Johnson and Balwant v The Attorney General of Trinidad and Tobago

1. Under s 3(a) and (c) of the Sexual Offences Act 23 of 1957 brothel keeping is a criminal offence and the concept of a brothel includes persons who reside in a brothel and share in any monies taken there. Section 20(1)(A)(a) of the Act

makes unlawful carnal intercourse for reward a criminal offence.

2. Section 23(1) provides: ‘Everyone has the right to fair labour practices.’

interights Lancaster House 33 Islington High Street London n1 9lh, ukTel: +44 (0)20 7278 3230Fax: +44 (0)20 7278 4334 E-mail: [email protected]: www.interights.org

interights provides leadership and support in the legal protection of human rights internationally. It works to ensure that human rights standards are protected and promoted effectively in domestic courts and before regional and international bodies, contributing to the development of a cumulative and progressive interpretation of international human rights law.

Its three main working methods, which are mutually reinforcing, are:

1 Providing expertise and support in strategic human rights litigation in priority thematic areas and other issues of particular regional significance

1 Building legal capacity of lawyers and judges through targeted training in human rights law, internships and through collaborative litigation efforts with local partners

1 Disseminating practical legal information that enhances the use of human rights law and practice

The thematic areas it tackles, taking into account shifting areas of threat and new opportunities for jurisprudential development, are:

1 Economic and social rights1 Equality1 Security and the rule of law

It works regionally in Africa, Europe (with a focus on South Eastern, Central and Eastern Europe and the former Soviet Union), the Middle East and North Africa (MENA), South Asia and the Commonwealth.

interights holds consultative status with the United Nations’ Economic and Social Council, the Council of Europe and the African Commission on Human and Peoples’ Rights. It is accredited with the Commonwealth Secretariat and is authorised to present collective complaints under the European Social Charter.

interights is a registered charity in the UK (charity number 292357) and a company limited by guarantee (incorporation number 1927581).


Digest

Digest 7.3 Combined for WEB

Documents

Transcript of Digest 7.3 Combined for WEB