Victim and Witness Rights

Section 18: Right to security of person

Section 18 of the HR Act states that everyone has the right to liberty and security of person.
The right to security requires the ACT to provide reasonable measures to protect a person’s physical security through the work of the police and emergency service for example.

Investigation stage
Some relevant considerations for victims when considering the concept of the right to the security of the person during the investigation stage would include:

  • victims have a right to know about whether an offender is being released from custody on bail [Victims of Crime Act 1994, S4(l)]. This should include police custody, and mental health facilities. This may not extend to providing information about the whereabouts of that person if there was a risk of retributive violence to them [Venables v New Group Newspapers Ltd [2001] 2 WLR 1038].

Court Stage
Some relevant considerations for victims when considering the concept of the right to security of the person during the court stage would include:

  • victims have a right to know about whether an offender is being released from custody [Victims of Crime Act 1994, S4(l)]. This should include both police and correctional custody, and from a mental health facility. This may not however extend to providing information about the whereabouts of that person if there was a risk of retributive violence to them [Venables v New Group Newspapers Ltd [2001] 2 WLR 1038].
  • a victim should be informed about the trial process and the identity of the defendant in situations where they do not know the defendant. This information is public information and, unless the proceedings involve a closed court, it should not be withheld from a victim who wishes to be informed.
  • this right could be enlivened in relation to allowing evidence to be given via audiovisual link.

Example: A victim’s right to security may sometimes conflict with an accused’s right to liberty. If there are no less restrictive means to ensure a victim or witness’ security that included giving the accused his or her liberty, then a human rights approach would provide for the accused’s liberty to be curtailed.

Post Court
A person has the right to security under the HR Act.

  • victims and witnesses should be provided information about the outcome of court proceedings as soon as possible. This should include situations where a not guilty verdict is handed down and the other party is released from custody;
  • victims have a right to know about whether an offender is being released from custody [Victims of Crime Act 1994, S4(l)]. Victims should be advised when an offender might be eligible for parole, the outcome of any parole hearings, and the date an offender will be released from custody or a mental health facility. This may not extend to providing information about the whereabouts of that person if there was a risk of retributive violence to them [Venables v News Group Newspapers Ltd and others; Thompson v News Group Newspapers Ltd and others [2001] 2 WLR 1038].

Case example (right to life, prevention from degrading treatment or punishment, right to freedom from discrimination based on gender)
The applicant and her mother were victims of domestic violence perpetrated by the applicant’s partner over a number of years, including numerous death threats. Despite a number of complaints being made to police, the behaviour continued, ultimately resulting in the murder of the applicant’s mother by the applicant’s partner.

The European Court of Human Rights found that the violence in this case was foreseeable. It ruled that the right to life extended in appropriate circumstances to a positive obligation on authorities to take preventative measures to protect an individual whose life is at risk from the criminal acts of another individual.

For a positive obligation to be present the authorities must have known, or ought to have known, at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party. An authority is in breach of this obligation if they have failed to take measures within the scope of their powers which might have been expected to avoid that risk.

Source: Opuz v Turkey (Application no. 33401/02) European Court of Human Rights (Date of decision: 9 June 2009).