Jago v District Council Origin of Human The first question is The power will be used
[1990] C.L.Y. 1038 Rights whether the common only in most exceptional
law of Australia circumstances to order
recognizes a right to a that a criminal
speedy trial separate prosecution be stayed (ie
from and additional to delayed). The Australian
the right to a fair trial. common law does not
The second is whether in recognize the existence
this case the appellant's of a special right to a
right to a fair trial has speedy trial, or to trial
been prejudiced by within a reasonable
virtue of undue delay time, which relies for its
amounting to an abuse operation not upon
of process. The appellant actual prejudice or
urges an affirmative unfairness but upon a
answer to each question concept of presumptive
and accordingly seeks a prejudice. Because there
permanent stay of the is no constitutional
charges against him. guarantee of a speedy
trial, the remedies are
discretionary and
necessarily relate to the
harm suffered or likely to
be suffered if
appropriate orders are
not made.
Entick v Carrington Origin of Human Involved the King’s men Held: the King/Earl
[1765] EWHC KB J98, Rights trespassing in a needed legal authority
95 ER 80 journalist’s house to find to interfere with
evidence of his property rights – it
wrongdoing – they wasn’t enough to have a
claimed it was on the general excuse of state
basis of national security necessity. “With respect
and “state necessity”. to the argument of state
necessity, the common
law does not understand
that kind of reasoning,
nor do our books take
notice of any such
distinctions.”
Malone v United Origin of Human Involved the police Held: intercepting his
Kingdom (8691/79) Rights listening to his phone calls infringed upon
(1985) 7 E.H.R.R. 14 calls and it was held in A8(1) and there was no
the UK that as there was legal basis for the
no law that specifically interception and nor
mentioned this scenario, could it be justified
it was not unlawful and under ECHR A8(2). The
the police thus had Interception of
authority to listen in to Communications Act
his calls. He proceeded 1985 must have a clear
to go to the ECoHR. legal basis, subject to
limits and review.
Privacy International v Origin of Human Issue: what was the It was ECHR compliant
Secretary of State for Rights nature of the computer but a specific authority –
network exploitation as opposed to a general
, Foreign and warrant granted under one – was necessary in
Commonwealth S5 Intelligence Services order to gain the
Act 1994 and was it warrant and thus there
Affairs
ECHR compliant? was no authorisation for
[2016] Info. T.L.R. 71 general warrants.
Marbury v Madison 5 Influences to UK William Marbury had Instead, the Court held
US 137 (1803) human rights and been appointed Justice that the provision of the
their protection of the Peace in the Judiciary Act of 1789
District of Columbia, but enabling Marbury to
his commission was not bring his claim to the
delivered. Marbury Supreme Court was itself
petitioned the Supreme unconstitutional, since it
Court to compel the new purported to extend the
Secretary of State, James Court’s original
Madison, to deliver the jurisdiction beyond that
documents. Marbury, which Article III, Section
joined by three other 2, established. Instead,
similarly situated the Court held that the
appointees, petitioned provision of the Judiciary
for a writ of mandamus Act of 1789 enabling
compelling the delivery Marbury to bring his
of the commissions. The claim to the Supreme
Court found that Court was itself
Madison’s refusal to unconstitutional, since it
deliver the commission purported to extend the
was illegal, but did not Court’s original
order Madison to hand jurisdiction beyond that
over Marbury’s which Article III, Section
commission via writ of 2, established. In so
mandamus. holding, Marshall
established the principle
of judicial review, i.e.,
the power to declare a
law unconstitutional.
Moohan v Lord UK Human Rights – Did Section 3(1) Held, it didn’t: the words
Advocate [2014] UKSC Changes Representation of the in their ordinary
67 [2015] 2 W.L.R. 141 People Act 1983 prevent meaning did not support
prisoners from voting a wider view that the
and subsequently go article was intended to
against A3 Protocol 1 cover any major political
ECHR – the right to free decision which was put
elections? to a popular vote.
Bosphorus HavaYollari: Pre-WW2 Involved the impounding “by Regulation Number
Turizm ve Ticaret Developments of leased aircraft in 990/93 the council gave
Anonim Sirketi v pursuance of UN effect to the decision of
Ireland [EC], no sanctions regime and EC the community and its
Council Regulation. member states, meeting
45036/98
Protection of within the framework of
fundamental rights by EC political cooperation.”
law equivalent to that of
the Convention system,
unless the presumption
to that effect was
rebutted.
Tyrer v UK (1979-80) 2 What is the ECHR? A juvenile was birched The birching of a juvenile
E.H.R.R. 1 on the Isle of Man and amounted to a breach of
[1990] C.L.Y. 1038 Rights whether the common only in most exceptional
law of Australia circumstances to order
recognizes a right to a that a criminal
speedy trial separate prosecution be stayed (ie
from and additional to delayed). The Australian
the right to a fair trial. common law does not
The second is whether in recognize the existence
this case the appellant's of a special right to a
right to a fair trial has speedy trial, or to trial
been prejudiced by within a reasonable
virtue of undue delay time, which relies for its
amounting to an abuse operation not upon
of process. The appellant actual prejudice or
urges an affirmative unfairness but upon a
answer to each question concept of presumptive
and accordingly seeks a prejudice. Because there
permanent stay of the is no constitutional
charges against him. guarantee of a speedy
trial, the remedies are
discretionary and
necessarily relate to the
harm suffered or likely to
be suffered if
appropriate orders are
not made.
Entick v Carrington Origin of Human Involved the King’s men Held: the King/Earl
[1765] EWHC KB J98, Rights trespassing in a needed legal authority
95 ER 80 journalist’s house to find to interfere with
evidence of his property rights – it
wrongdoing – they wasn’t enough to have a
claimed it was on the general excuse of state
basis of national security necessity. “With respect
and “state necessity”. to the argument of state
necessity, the common
law does not understand
that kind of reasoning,
nor do our books take
notice of any such
distinctions.”
Malone v United Origin of Human Involved the police Held: intercepting his
Kingdom (8691/79) Rights listening to his phone calls infringed upon
(1985) 7 E.H.R.R. 14 calls and it was held in A8(1) and there was no
the UK that as there was legal basis for the
no law that specifically interception and nor
mentioned this scenario, could it be justified
it was not unlawful and under ECHR A8(2). The
the police thus had Interception of
authority to listen in to Communications Act
his calls. He proceeded 1985 must have a clear
to go to the ECoHR. legal basis, subject to
limits and review.
Privacy International v Origin of Human Issue: what was the It was ECHR compliant
Secretary of State for Rights nature of the computer but a specific authority –
network exploitation as opposed to a general
, Foreign and warrant granted under one – was necessary in
Commonwealth S5 Intelligence Services order to gain the
Act 1994 and was it warrant and thus there
Affairs
ECHR compliant? was no authorisation for
[2016] Info. T.L.R. 71 general warrants.
Marbury v Madison 5 Influences to UK William Marbury had Instead, the Court held
US 137 (1803) human rights and been appointed Justice that the provision of the
their protection of the Peace in the Judiciary Act of 1789
District of Columbia, but enabling Marbury to
his commission was not bring his claim to the
delivered. Marbury Supreme Court was itself
petitioned the Supreme unconstitutional, since it
Court to compel the new purported to extend the
Secretary of State, James Court’s original
Madison, to deliver the jurisdiction beyond that
documents. Marbury, which Article III, Section
joined by three other 2, established. Instead,
similarly situated the Court held that the
appointees, petitioned provision of the Judiciary
for a writ of mandamus Act of 1789 enabling
compelling the delivery Marbury to bring his
of the commissions. The claim to the Supreme
Court found that Court was itself
Madison’s refusal to unconstitutional, since it
deliver the commission purported to extend the
was illegal, but did not Court’s original
order Madison to hand jurisdiction beyond that
over Marbury’s which Article III, Section
commission via writ of 2, established. In so
mandamus. holding, Marshall
established the principle
of judicial review, i.e.,
the power to declare a
law unconstitutional.
Moohan v Lord UK Human Rights – Did Section 3(1) Held, it didn’t: the words
Advocate [2014] UKSC Changes Representation of the in their ordinary
67 [2015] 2 W.L.R. 141 People Act 1983 prevent meaning did not support
prisoners from voting a wider view that the
and subsequently go article was intended to
against A3 Protocol 1 cover any major political
ECHR – the right to free decision which was put
elections? to a popular vote.
Bosphorus HavaYollari: Pre-WW2 Involved the impounding “by Regulation Number
Turizm ve Ticaret Developments of leased aircraft in 990/93 the council gave
Anonim Sirketi v pursuance of UN effect to the decision of
Ireland [EC], no sanctions regime and EC the community and its
Council Regulation. member states, meeting
45036/98
Protection of within the framework of
fundamental rights by EC political cooperation.”
law equivalent to that of
the Convention system,
unless the presumption
to that effect was
rebutted.
Tyrer v UK (1979-80) 2 What is the ECHR? A juvenile was birched The birching of a juvenile
E.H.R.R. 1 on the Isle of Man and amounted to a breach of
