As per the European Convention of Human Right, Art.5 deals with liberty:” Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” The presumption of liberty of an individual is based on this convention. It operates as per the international obligations. The following would make the point clear.[Blogger]
Presumption of Liberty and Onus It was accepted by the parties that there is a presumption in favour of liberty at common law in Scotland as well as in England and no doubt other jurisdictions (Singh v SSHD 1993 SLT 950, TP at paragraph 33; D v Home Office 2006 1 WLR 1003 at paragraphs 69-70 and 76; see also R v SSHD 1923 AC 603 at 645-6). This has not been removed by paragraph 2 of Schedule 3 to the 1971 Act which does not create a presumption in favour of detention on completion of a sentence of imprisonment (R (Sedrati) v SSHD 2001 EWHC Admin 418, per Moses J at paragraphs 1 and 4). The onus lies on the Secretary of State to justify detention and continued detention pending removal (R(I) v SSHD 2002 EWCA 888 at paragraph 37, R (SK) 2008 EWHC 98 (Admin) per Munby Jat paragraph 5-7; R(SK Zimbabwe) v SSHD 2009 2 AER 365 at paragraph 35, I v Secy of State for the Home Department 2002 EWCA Civ 888 per Simon Brown LJ at paragraph 37).
Hardial Singh Principles
These have been applied, as summarised by Dyson LJ in R(I) v SSHD 2003 NILR 196 at paragraph 46, in several cases in Scotland (MAS v SSHD 2009 CSOH 32, K v SSHD 2009 SLT 525, and TP v AG for Scotland 2009 CSOH 25), as well as in England (R (Qaderi) v SSHD 2008 EWHC 1033, R (Ashori) vSSHD 2008 EWHC 1460, and R (Jamshidi) v SSHD 2008 EWHC 1990). These are now part of jurisprudence and Courts do follow them.
These have been applied, as summarised by Dyson LJ in R(I) v SSHD 2003 NILR 196 at paragraph 46, in several cases in Scotland (MAS v SSHD 2009 CSOH 32, K v SSHD 2009 SLT 525, and TP v AG for Scotland 2009 CSOH 25), as well as in England (R (Qaderi) v SSHD 2008 EWHC 1033, R (Ashori) vSSHD 2008 EWHC 1460, and R (Jamshidi) v SSHD 2008 EWHC 1990). These are now part of jurisprudence and Courts do follow them.
No comments:
Post a Comment