Presumption of Liberty and Onus: International Law

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.  

K.M., Re Judicial Review [2010] ScotCS CSOH_8 (21 January 2010) 
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH8.html 
Cite as: [2010] ScotCS CSOH_8

Chapter-15 Interpretation of constitution -Part-12-5

As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charter party. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society.[1] In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane, [2], in para. 88:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”

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[1] (see Trop v Dulles, above, at 101).

[2] State v Makwanyane, 1995 (3) SA 391,