Human Rights and Prisons - Rethinking Crime and Punishment
Human Rights and Prisons - Rethinking Crime and Punishment
Human Rights and Prisons - Rethinking Crime and Punishment
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Correct Remedy For Breach Of Natural Justice Is Judicial Review (NZ)<br />
McKean v Attorney-General [2007] 3 NZLR 819 (HC)<br />
In this case the Judge found that the Visiting Justice's decision not to allow<br />
legal representation had been made unfairly, in breach of the principles of<br />
natural justice. However Mr McKean was not entitled to compensation, as<br />
judicial review was adequate redress for the error of the Visiting Justice.<br />
This is one of several cases dealing with judicial review of disciplinary<br />
decisions by Visiting Justices. These affirm that judicial review, rather than<br />
compensation, is the appropriate remedy for a breach of natural justice. This<br />
decision referred to dicta in previous cases – including Brown v Attorney-<br />
General [2005] 2 NZLR 405 <strong>and</strong> Attorney-General v Udompun [2005] 3 NZLR<br />
204 – that compensation is not necessary if there is already an effective<br />
remedy (ie, judicial review) for breaches of the NZBORA.<br />
Legal Representation – Judicial Review/ BORA Compensation (NZ)<br />
Botting v Attorney-General 16/12/05, Chisholm J, HC Christchurch CIV-<br />
2005-409-1570<br />
This case concerned a prisoner who had been declined legal representation in<br />
relation to a disciplinary charge of cannabis use following a urine test. He<br />
claimed that this breached natural justice, <strong>and</strong> he sought compensation for<br />
loss suffered as a result (namely, increase in „Identified Drug User‟ status <strong>and</strong><br />
ejection from a programme).<br />
The Judge found that issues concerning the drug test's validity emerged<br />
during the hearing with which Mr Botting struggled to cope; thus he was<br />
prejudiced in his defence by lack of legal representation, constituting a breach<br />
of natural justice. The Visiting Justice‟s decision was set aside for lack of<br />
evidence. However, citing dicta in Attorney-General v Udompun [2005] the<br />
Judge held that compensation was not justified.<br />
Judicial Review – Procedural Fairness (NZ)<br />
Percival v Attorney-General [2006] NZAR 215 (HC)<br />
This case involved claims by five prisoners in relation to charges of tampering<br />
with urine samples. Four of the prisoners argued that the Visiting Justice‟s<br />
decision breached natural justice, as they were denied legal representation<br />
<strong>and</strong> the opportunity to cross-examine witnesses on the scientific evidence.<br />
The Judge found that natural justice had been breached. While declining to<br />
award compensation, the Judge noted that the right breached is important <strong>and</strong><br />
should not be trivialised. Three of the prisoners were entitled to a declaration<br />
that the disciplinary decision was invalid.<br />
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