Tag: Human Rights

Regina v KJ Martin: CACD 20 Feb 2003

The defendant had been found unfit to plead on a charge of murder. Charges against the co-defendants were later reduced to inflicting grievous bodily harm, but when the defendant came to be dealt with, it was on the basis that the charge remained murder. The sole evidence against him was from a witness whose evidence was read because of his fear. He challenged the fairness of a trial in which the substantial evidence against him was not tested under cross examination.
Held: It could not be a rule of law that a witness’s evidence could not be read, where he was the only witness against the defendant. This would make the section of the 1988 Act otiose. A decision made by jury under a section 4A hearing was as to the actus reus only, and not as to intent. Here, however, the question was as to the defendant’s knowledge that another might commit a crime. Antoine says that a court should look to the physical acts of the defendant, and bear in mind the social purpose of the legislation. It must be recognised that the distinction is not always clear. The admission of evidence need not always be unfair, but in these circumstances the inability to tst the central witness in the case was fundamental. The witness may have had reasons not to tell the truth.
Lord Justice Potter The Honourable Mr Justice Mackay
[2003] 2 Cr App R 322, [2003] EWCA Crim 357
Bailii
European Convention on Human Rights, Criminal Justice Act 1988 23, Criminal Procedure (Insanity) Act 1964 4A, European Convention on Human Rights
England and Wales
Citing:
Cited – Regina v Antoine HL 30-Mar-2000
The appellant sought to argue that despite having been found unfit to plead under the 1964 Act, it was still open to him to argue that the defence under section 2 of the 1957 Act applied, and that he was entitled to be plead diminished . .
Cited – Regina v O’Loughlin and McLoughlin 1988
. .
Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – Unterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .

Cited by:
Cited – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.179577

Elan-Cane, Regina (on The Application of) v Secretary of State for The Home Department and Another: Admn 22 Jun 2018

Challenge to the lawfulness of the current policy of Her Majesty’s Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an ‘M’ (male) or ‘F’ (female) indicator in the sex field, rather than an ‘X’, indicating an unspecified sex.
Held: The Appellant’s non-gender identity did fall within the scope of the right to respect for private life protected by Article 8 ECHR, and the Appellant’s Article 8 right was therefore engaged. However, the Government’s continuing policy did not amount to an unlawful breach of that right and there was therefore no positive obligation on the Government to provide an ‘X’ marker on passports.
A literal reading of the language might lead the reader to conclude that the Appellant ‘is not concerned with gender identification at all’, but the judge rejected that notion, saying: ‘my understanding of what is intended to be conveyed by the use of this phrase is that the claimant is seeking to identify outside the binary concept of gender, rather than entirely rejecting the concept of gender altogether. Furthermore, not only does the current NHS definition of gender dysphoria recognise situations outside the accepted concept of transgenderism, (and the claimant’s hysterectomy was undertaken by the NHS), but it is clear from Kate O’Neil’s evidence that the GEO recognises that an individual’s gender identity includes, ‘. . male, female, both, neither or fluid.’
That being the case, in my judgment, the claimant’s identification is one relating to gender and I consider that it is one encompassed within the expression ‘gender identification’ in Van Kuck.’
‘Although at one time the terms ‘sex’ and ‘gender’ were used interchangeably (and confusingly still are on occasions), due to an increased understanding of the importance of psychological factors (albeit these may be due to differences in the brain’s anatomy), sex is now more properly understood to refer to an individual’s physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual’s self-perception.’
Jeremy Baker J
[2018] EWHC 1530 (Admin), [2018] WLR(D) 397, [2018] 4 All ER 519, [2018] 1 WLR 5119
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Cited by:
Appeal from – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – FDJ, Regina (on The Application of) v Secretary of State for Justice Admn 2-Jul-2021
The Claimant challenged the lawfulness of the Defendant’s policies relating to the care and management within the prison estate of persons who identify as the opposite gender from that which was assigned to them at birth. In particular, she . .

These lists may be incomplete.
Updated: 04 July 2021; Ref: scu.618996

Regina (Konan) v Secretary of State for the Home Department: Admn 21 Jan 2004

The claimants alleged that their immigration detention had been unlawful.
Held: Collins J said: ‘Since the detention at least since 24 June 2002 was contrary to the defendant’s own policy as published in Chapter 38, it was unlawful. In so deciding, I am applying the decision of the Court of Appeal in Nadarajah. I do not therefore have to consider the question of proportionality.’
Collins J, rejected a submission on behalf of the Secretary of State that bail was an alternative remedy: ‘An adjudicator in considering a bail application is not determining (indeed, he has no power to determine) the lawfulness of the detention. The grant of bail presupposes the power to detain since a breach of a bail condition can lead to a reintroduction of the detention.’
The Honourable Mr Justice Collins
[2004] EWHC 22 (Admin)
Bailii
England and Wales
Citing:
Cited – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that . .

Cited by:
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – B (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.192297

Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archidioese Of The Pec Patriarchy)” v “The Former Yugoslav Republic Of Macedonia”: ECHR 16 Nov 2017″

References: 3532/07, [2017] ECHR 1015
Links: Bailii
Ratio: ECHR Judgment : Violation of Freedom of assembly and association – Freedom of association read in the light of Ar…
Statutes: European Convention on Human Rights
Jurisdiction: Human Rights

Last Update: 20-Apr-18
Ref: 608123

Davidson v Revenue and Customs; Excs 25 Jul 2008

References: [2008] UKVAT-Excise E01127
Links: Bailii
Ratio: VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No
JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable – Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed.
Statutes: Finance Act 1994 14(3), Tobacco Products Duty Act 1979 1(1), Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, Alcoholic Liquor Duties Act 1979 Sch 36, Beer Regulations 1993 (SI 1993/1228) 15, Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 4, Customs and Excise Management Act 1979 49(1), European Convention on Human Rights 6
This case cites:

  • Cited – Bowles v Bank of England KBD ([1913] 1 Ch 57, [1913] 82 LJ Ch 124, [1913] 108 LT 95, [1913] 29 TLR 42, [1913] 57 Sol Jo 43, [1913] 6 Tax Cas 136)
    The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year.
    Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the . .
  • Cited – Weller v Revenue & Customs VDT (Bailii, [2008] UKVAT-Excise E01110, [2008] V & DR 221)
    VDT EXCISE – RESTORATION – payment when restoration not possible – amount of payment – goods purchased on cross-channel ferry – ferry operator used simplified scheme under Article 7(9), EU Council Directive 92/12 . .
  • Cited – Gascoyne v Customs and Excise and Another CA (Bailii, [2004] EWCA Civ 1162, [2005] 2 WLR 222, [2005] Ch 215)
    The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
    Held: The difficult statements in Gora . .
  • Cited – Commissioners of Customs & Excise v Dickinson ChD (Bailii, [2003] EWHC 2358 (Ch), Times 03-Dec-03, Gazette 22-Jan-04, [2004] 1 WLR 1160, [2003] All ER (D) 315)
    The applicant had returned to England with a quantity of goods which the Customs and Excise deemed were not for his personal use. His car was seized, but ordered to be restored by the VAT and Duties Tribunal.
    Held: There was now a two track . .

(This list may be incomplete)

Last Update: 14-Sep-16
Ref: 273034

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales; UTTC 2 Nov 2012

References: [2012] UKUT 395 (TCC)
Links: Bailii
Coram: Sales J
Ratio: TLC Provision of adoption services by a charity – discrimination against homosexuals and same sex couples who are potential adoptive parents – whether objectively justified under section 193 of the Equality Act 2010 – analogy with approach under Article 14 of the European Convention on Human Rights – whether permission should be granted for amendment of the charity’s Memorandum of Association.
Statutes: Equality Act 2010 193, European Convention on Hman Rights 14

Last Update: 25-Jun-16
Ref: 466704

Regina v Oakes; 28 Feb 1986

References: [1986] 1 SCR 103, 1986 CanLII 46 (SCC), 53 OR (2d) 719, 24 CCC (3d) 321, 50 CR (3d) 1, 65 NR 87, [1986] CarswellOnt 95, EYB 1986-67556, [1986] SCJ No 7 (QL), 14 OAC 335, 16 WCB 73, [1986] ACS no 7, 19 CRR 308
Links: Canlii
Coram: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
Ratio:Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not reverse onus in violation of s. 11(d) of the Charter — Whether or not reverse onus a reasonable limit to s. 11(d) and justified in a free and democratic society — Canadian Charter of Rights and Freedoms, ss. 1, 11(d) — Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3(1), (2), 4(1), (2), (3), 8.
Criminal law — Presumption of innocence — Reverse onus — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not constitutional guarantee of presumption of innocence (s. 11(d) of the Charter) violated.
This case is cited by:

(This list may be incomplete)

Last Update: 10-Jun-16
Ref: 564962

The judicial authority in Sweden v Assange; 24 Feb 2011

References: [2011] EW Misc 5 (MC)
Links: Bailii
Coram: Howard Riddle, Senior District Judge
Ratio:(City of Westminster Magistrates’ Court – Sitting at Belmarsh Magistrates’ Court) The authority sought the extradition of the defendant to Sweden to face prosecution on allegations of sexual assaults. The defendant argued that the Act allowed extradition only for prosecution, and that in this case questioning only was sought and an extradition would be an abuse.
Held: There was no ambiguity in the warrant. The defendant was required for the purposes of conducting a criminal prosecution. The Swedish prosecution process allowed a stage before a decision was made as to the exact form of prosecution: ‘It is a question of fact in each case whether the person passes the threshold of being an ‘accused’ person who is wanted for prosecution. It is accepted by all parties in this case that it is wrong to approach this question solely from the perspective of English criminal procedure. In our jurisdiction prosecution will normally be started by the laying of an information, or a decision to charge. In many, perhaps most, other European countries the position is different.’ That being the case, the issue was as to the validity of the warrant. It was valid. It would not be appropriate to interrogate such a defendant otherwise than face to face, and the request for the return was proper.
The procedure for hearing such cases in Sweden behind closed doors was not a breach of the defendant’s human rights.
Statutes: Extradition Act 2003
This case is cited by:

  • At Magistrates Court – Assange -v- The Swedish Prosecution Authority SC (Bailii, [2012] UKSC 22, Bailii Summary, SC Summary, UKSC 2011/0264, SC, [2012] 2 AC 471, [2012] 3 WLR 1, [2012] 4 All ER 1249, [2013] 1 CMLR 4)
    The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
  • At Magistrates Court – Assange -v- Swedish Prosecution Authority Admn (Bailii, [2011] EWHC 2849 (Admin))
    The defendant argued that he should not be extradited under a European Arest warrant to Sweden to face allegations of serious sexual assaults. He argued that the prosecutor requesting the extradition was not a judicial authority, that some offences . .

(This list may be incomplete)

Last Update: 04-Jun-16
Ref: 430056

B -v The United Kingdom; P v The United Kingdom: ECHR 24 Apr 2001

References: Times 15-May-2001, 36337/97, 35974/97, (2002) 34 EHRR 529, [2001] 2 FLR 261, [2001] ECHR 295, [1999] ECHR 179
Links: Bailii, Bailii
Ratio The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were affected, the rules allowed application for their admission to the proceedings, and leave could also be sought to disclose the results of the proceedings to named parties. Custody and contact disputes were prime examples of situations where exclusion of the press and public could be justified to protect the interests of the child and parties to the case: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment . . to pronounce the judgment in public would, to a large extent, frustrate these aims.’ Parties were expected to be candid and open about events, and that would be threatened if proceedings were held in public.
Statutes: European Convention on Human Rights 6.1
This case cites:

  • Appeal from – P-B (a Minor) (child cases: hearings in open court) CA (Bailii, [1996] EWCA Civ 510, (1997) 1 All ER 58, [1996] 2 FLR 765)
    The applicant sought to have his application for a residence order heard in open court: ‘Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public . .

(This list may be incomplete)
This case is cited by:

  • Cited – Kent County Council -v- The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD ([2004] EWHC 411 (Fam), Bailii, [2004] 2 FLR 142, [2004] EWHC Fam 411, [2004] Lloyds Rep Med 303)
    The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
  • Appealed to – P-B (a Minor) (child cases: hearings in open court) CA (Bailii, [1996] EWCA Civ 510, (1997) 1 All ER 58, [1996] 2 FLR 765)
    The applicant sought to have his application for a residence order heard in open court: ‘Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public . .
  • Cited – Pelling -v- Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA ((2004) 2 FLR 823, Bailii, [2004] EWCA Civ 845, [2004] 3 All ER 875)
    The applicant sought an order that his application for a joint residence order should be held in public.
    Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
  • Cited – A -v- British Broadcasting Corporation (Scotland) SC ([2015] 1 AC 588, 2014 SC (UKSC) 151, 2014 SCLR 593, Bailii, [2014] UKSC 25, [2014] 2 All ER 1037, 2014 GWD 15-266, [2014] WLR(D) 196, [2014] 2 WLR 1243, [2014] EMLR 25, 2014 SLT 613, WLRD, Bailii Summary, UKSC 2013/0159, SC Summary, SC)
    The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .

(This list may be incomplete)

Last Update: 17-May-16
Ref: 166087