Criminal

Mentally ill defendant convicted of second serious offence - automatic life sentence - not inhuman or degrading treatment or punishment

R v Drew: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry): 8 May 2003

The defendant in August 2000 pleaded guilty to a 'serious offence' within section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, having been convicted of two such offences in 1995.

He was automatically sentenced to life imprisonment.

While not insane or unfit to plead, he was mentally ill, suffering from schizophrenia.

Shortly after sentence, he was, on the authorisation of the Home Secretary, moved from prison to a hospital.

The Court of Appeal [2002] Gazette, 21 February, 34 dismissed his appeal against sentence.

He appealed.

Huw Davies QC and Andrew Jones (instructed by Hornby Baker Jones & Wood, Newport) for the defendant.

David Perry (instructed by the Treasury Solicitor) for the Home Secretary (interested party).

Bruce Houlder QC and Duncan Penny (instructed by the Crown Prosecution Service, Casework Directorate) for the Crown.

Held, dismissing the appeal, that to impose a punitive sentence of imprisonment on a mentally disordered defendant who was criminally responsible and fit to be tried was not wrong in principle as a matter of domestic or EU law; and that, in view of the fact that life imprisonment was not imposed on a defendant who did not appear to represent a significant danger to the public and of the Home Secretary's power under section 47 of the Mental Health Act 1983 to transfer a defendant to a hospital for treatment, section 37 of the 1983 Act and section 109 of the 2000 Act were not incompatible with article 3 of the European Convention on Human Rights, as constituting inhuman or degrading treatment or punishment, or with article 5.

(WLR)

Contempt of court - defendant successfully appealing to Court of Appeal (Criminal Division) against finding of criminal contempt - no power to award costs out of central funds

R v Moore (Peter): CA (Lord Justice Rose, Mr Justice Grigson and Mr Justice Beatson): 12 May 2003

The defendant successfully appealed under section 13 of the Administration of Justice Act 1960 against a finding of contempt of court and was awarded costs out of central funds.

The case was referred back to the Court of Appeal (Criminal Division) for reconsideration of the order for costs on the ground that there was no power under the 1960 Act to award such costs.

It was accepted that the power of the court to review its earlier decision was exercisable in exceptional circumstances and that the making of an order for costs out of central funds when the public were not represented was capable of constituting exceptional circumstances.

The defendant contended that the power in section 13 of the 1960 Act to 'make such other order as may be just' was wide enough to cover an order for costs and that if there were no such power a successful appellant who was able to pay for representation out of his own pocket would be deprived of the right to have legal assistance of his own choosing, in breach of article 6(3)(c) of the European Convention on Human Rights.

Paul Sharkey (instructed by Hewitt Burrough & Co, Dartford) for the defendant; Jeremy Morgan QC (instructed by the Treasury Solicitor) for the Crown.

Held, dismissing the appeal, that section 13(3) did not provide express statutory authority for the payment of costs out of central funds to a defendant who successfully appealed against a finding of contempt; that, applying authority, no power to make such an order could properly be implied; that there was no express convention right to an award of costs at the conclusion of proceedings, although a claim under article 6 might arise where the refusal of such an order cast doubt on the innocence of an acquitted defendant or deprived the person concerned of an effective right to a fair hearing, which was not this case.

(WLR)

Trade mark - infringement - criminal liability requiring use of sign as trade mark

R v Johnstone (Robert): HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe): 22 May 2003

'Bootleg' recordings in the form of compact discs were found at the defendant's home and in a parcel sent by him and he was charged on indictment with 12 offences under section 92(1)(c) of the Trade Marks Act 1994.

The discs bore the names of well-known performers, which were registered as trade marks.

The defendant contended at trial that the prosecution had to prove that what he had done had been a civil infringement of the trade marks and, relying on section 11(2)(b) of the Act, that the use of the performers' names on the discs had not been as an indication of trade origin but merely as indicating the performers.

The judge rejected those submissions and the defendant changed his plea to guilty.

The Court of Appeal (Criminal Division) allowed his appeal against conviction.

The Crown appealed.

David Perry, Brian O'Neill and George Hayman (instructed by the Crown Prosecution Service, headquarters) for the Crown.

David Lane QC and John Boumphrey (instructed by Audu & Co) for the defendant.

Geoffrey Hobbs QC and David Groome (instructed by Richards Butler) for the British Phonographic Industry, interveners.

Held, dismissing the appeal, that to constitute an offence under section 92 of the 1994 Act the use of the sign had to be use as a trade mark, indicating trade origin, and use of the name of the performer on a record merely as an indication of the name, where such use was not likely to be understood as indicating any other connection between the performer and the disc, would be merely descriptive of the contents of the disc and not an indication of the trade origin of the disc itself.

(WLR)