Employment - sole practitioner seeking legal aid franchise from Legal Services Commission - grant of franchise amounting to conferment of authorisation or qualification

Patterson v Legal Services Commission: CA (Lords Justice Judge and Clarke and Mr Justice Burton): 11 November 2003

The applicant, who was of black Afro-Carribean origin, was the sole practitioner in a firm of solicitors, whose work was 98% publicly funded.

The firm was granted a one-year franchise contract after a pre-franchise audit was carried out by the Legal Services Commission, but the commission refused to grant her a three-year contract.

The applicant claimed, inter alia, that by satisfying the commission's quality assurance standard the commission had conferred on her 'authorisation or qualification' within the meaning of the Race Discrimination Act 1976, section 12, which appeared in part II of the Act dealing with 'discrimination in the employment field'.

The Employment Tribunal refused the application, but the Employment Appeal Tribunal allowed the applicant's appeal.

The commission appealed.

Thomas Croxford (instructed by the Legal Services Commission) for the commission.

David Daly (instructed by Patterson Sebastian & Co) for the applicant.

Held, dismissing the appeal, that in granting a franchise, and thus the right to display the commission's logo and the right to do publicly funded work on behalf of clients, the commission conferred an 'authorisation or qualification' on the applicant which 'facilitated her engagement' in the solicitor's profession, as those expressions were used in section 12; that it would be unlawful to discriminate against the applicant on racial grounds under section 12(1)(a) 'in the terms on which the commission was prepared to confer on [her] that authorisation', and under section 12(1)(b) by 'refusing, or deliberately omitting to grant [her] application' for the franchise; and that the award of a franchise was sufficiently personal to the applicant in that she herself had to demonstrate compliance with the standards required by the commission.

Road traffic - blood or urine specimen - requirement by police officer - discretion to be exercised reasonably

Joseph v Director of Public Prosecutions: QBD (Lord Woolf Chief Justice and Mr Justice Mackay): 24 November 2003

The defendant driver provided two breath specimens for analysis at a police station, the lower of which disclosed an alcohol content of no more than 50 microgrammes of alcohol in 100 millilitres of breath.

He was advised that, under section 8(2) of the Road Traffic Act 1988, he had a right to have that specimen replaced by such specimen as the officer might require, either of blood or of urine, under section 7(4).

Before the officer chose which specimen to require, the defendant said he was not prepared to give a specimen of blood because he was a Rastafarian and it was contrary to his religious beliefs to give blood.

The officer, who thought that he was required to choose a blood specimen if there was no medical reason for not doing so, told the defendant that if he did not give blood he would be charged with drink driving.

The defendant refused to give blood and was charged with driving with excess alcohol in his breath.

He was convicted and his appeal to the Crown Court was dismissed.

The defendant appealed by way of case stated.

Tom Macdonald (instructed by Hayes Burcombe & Co, Ealing) for the defendant; Orlando Gibbons (instructed by Crown Prosecution Service, Headquarters) for the prosecution.

Held, allowing the appeal, that under section 7(4) of the 1988 Act a police officer had a wide discretion to determine whether a driver should be required to provide a specimen of blood or of urine; but that, nonetheless, it was a statutory discretion conferred on the officer and, in appropriate circumstances, it was to be tested in accordance with the principles laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; that the circumstances where it would be possible to interfere with the exercise of that discretion would be rare because, in accordance with Director of Public Prosecutions v Warren [1993] AC 319, the officer was not required to invite the driver to state his preference for giving a particular specimen; but that, where a valid reason was put forward why a particular specimen should be selected and there was no reason for not choosing that specimen, the officer should at least consider whether to choose that specimen; that if the officer decided that the specimen should be one to which the driver objected, without any basis for doing so, that decision could be categorised as perverse or it could be said that the statutory procedure had not been validly gone through; and that, accordingly, since the officer had misunderstood the position under section 7(4) and had failed to consider that the defendant genuinely believed that he should not give a blood sample, the conviction would be quashed.