Wednesday, December 29, 2010

Do criminals have 'human rights'?

According to the UK Court of Appeal, applying the UK Human Rights Act, yes.

Al Hassan-Daniel v HM Revenue and Customs [2010] EWCA Civ 1443 is a decision about the rights of a person who had swallowed, and was attempting to smuggle, 116 packages of cocaine. The decision was only on a preliminary point and not a full trial --- indeed the court held "grave doubts" about the future success of the action. A full summary can be found at the UK Human Rights Blog. (This post is a shameless reblog.) [Update: See also UK Law Society Gazette - it's a short, thorough, less opinionated case note.]

The decision is notable because generally in the UK --- and in other common law countries, such as Australia --- criminals are prevented from gaining legal benefit from their criminal behaviour. However, the court held that this criminality defence did not apply to human rights.

The comments of the court on the issue bear repeating verbatim. Emphasis mine.
That such harm or detriment may have happened to an individual whose own merits are severely tainted is not, it is argued, relevant. Human rights are not just for the virtuous.  ...  
It is one thing to discountenance the manipulative use of a ... right for a purpose for which it was not meant; it is another to create a gateway to human rights which only the virtuous may enter.
I believe it's a good decision, and the right one. To quote the UK Human Rights blog post:
A person’s criminal behaviour should not act as a green light for the state to treat them according to standards which would otherwise be unacceptable or negligent.
However, I accept that some people believe otherwise. (Links, from a quick search, are in descending order of comprehensibility/sanity.) 

Either way, given the lingering debate about the desirability of formal legal protection of human rights in Australia, it's an issue which needs some serious thought.

Monday, December 27, 2010

In (very) brief: ex delicto --- a webcomic of law and nonsense


Pity it isn't being updated.

In Brief: Reporting Human Rights, or something...

Philip Lawrence is a convicted murderer who lives in the UK. The government attempted to deport him to his native Italy; a move which was blocked by a British court.

The Telegraph newspaper argued that this was indicative of problems in UK Human Rights law. However, the UK Human Rights Blog argues that the case was considerably more complicated than the Telegraph suggested, and "human rights" was not the central issue of the case.

Australian media is blighted by the same disease --- simplistic or just plain wrong reporting of legal issues.

(The blog also has other examples of incorrect reporting in the UK, if you care to browse.)

Tuesday, December 21, 2010

Contempt of the CCC: CCC v Wallace, and others

The Supreme Court decisions in CCC v Wallace [2010] WASC 390Smith [2010] WASC 396Silvestro [2010] WASC 398, and Allbeury ([2010] WASC 399), delivered orally on the 13th, have been published.

Coverage of the decision can be found on ABC News Online.

The crux of the CCC's complaint was that the four had refused to answer questions. Mr Allbeury was also accused of insulting the Commissioner.

The primary judgment is that of Wallace, where the lawyers raise a number of mostly technical arguments, none of which were accepted. Smith, Silvestro, and Allbeury are shorter judgments incorporating the Wallace decision.

The first argument was that the certificate issued by the CCC to begin the proceedings went "beyond that which is permissible within the scope of s 163(1) of the CCC Act" because it did more than merely state 'the act or omission' that is said to constitute the contempt, taking "the document beyond the scope of a certificate which is valid to confer jurisdiction upon the court". Martin CJ held that, taking this view to the logical conclusion, it would make it impossible to include anything other than a bald description of the conduct alleged to constitute contempt --- it would not even be permissible to include the question asked. Rather, "the proper scope of the certificate will be determined by reference to the scope of the contempt alleged.

Furthermore, even if the certificate was technically irregular, the irregularity did not prejudice the accused, so the irregularity would be waived. 

Secondly, it was argued for the accused that the CCC "failed to discharge the burden of proof by failing to prove the validity of what is described as an 'extraordinary powers finding' made by the Commissioner". A technical discussion of the Act follows, ultimately concluding that it was not open to a person summoned to appear before the CCC to hold off challenging the validity of extraordinary powers until they are called up for contempt charges --- they would be expected to make that challenge before the CCC first. The "colateral challenge" therefore failed.

The other cases proceeded upon similar lines.

On the less serious end of the spectrum, one of the more humorous submissions made by Mr Allbeury's counsel, regarding the alleged insult of the Commissioner, was dealt with in [14]-[15] of that decision. (Emphasis added)
... [I]n answer to 14 separate questions posed by the Commissioner and counsel assisting, ... Mr Allbeury answered by telling the Commissioner to 'fuck off' or to 'get fucked'.
It is said that I should conclude that that evidence does not constitute a contempt by insulting conduct. The proposition, it is said, is that mere abuse does not of itself amount to contempt of court. It seems to me that the difficulty with that submission is that the course of conduct identified by the certificate and which I have seen depicted in the DVD was not mere abuse; it was an abusive, derogatory and contemptuous response ...

Mason v Methodist Ladies College

Mason v Methodist Ladies College --- the case of X, an autistic child who was not allowed to undertake kindergarten at MLC --- has been settled with MLC issuing an apology to the child and her parents, admitting fault. [Story on PerthNow, including the apology, and also ABC News Online]

The Mason's complaint was first brought before the Human Rights and Equal Opportunity Commission (HREOC). A case was then filed in the Federal Magistrates Court, alleging a breach of the Disability Discrimination Act 1992 (Cth) --- specifically, the Disability Standards for Education 2005 (Cth) --- as well as breach of contract. Orders were also sought under s 87 of the Trade Practices Act 1974 (Cth).

Lucev FM ordered that proceedings be transferred to the Federal Court ([2009] FMCA 570), as they were complex and touched on an important issue of law.

The settlement concludes those proceedings.

As the settlement is confidential, the lack of reported decisions under the Standards looks set to continue.