Law reports

Law reports

Criminal

Application for leave to appeal against conviction refused - no representation order for renewed application - not incompatible with right to legal representation

R v Oates: CA (Lord Justice Rose, Mr Justice McKinnon and Mr Justice Poole): 25 April 2002

The defendant's application for leave to appeal against her murder conviction was refused by the single judge, who also refused to grant her a representation order for a renewed application before the full court.

Counsel appeared pro bono on her behalf but took a preliminary point that the defendant ought to have publicly funded legal aid for the purpose of an oral renewed application for leave to appeal.

Absent any such provision, a wholly unjustifiable burden was placed on the bar for appearing without fee in support of renewed applications, and such a procedure fell foul of schedule 1, part 1, article 6(3)(c) of the Human Rights Act 1998 which required that legal assistance be given free 'when the interests of justice so require'.

Philip Sapsford QC and Richard Jones (instructed by Roger James Clements & Partners, Newport) for the applicant; Gregory Bull (instructed by the Crown Prosecution Service, Gwent) for the Crown.

Held, refusing the application, that the legal aid provided to a defendant to criminal proceedings extended, following a conviction, to the provision by counsel of advice and to the drafting of grounds of appeal if appropriate; that a renewed application to the full court would be considered without an oral hearing unless counsel was privately instructed or appeared pro bono; and that there was nothing in the judgments of the European Court of Human Rights to suggest that the interests of justice required that legal aid be extended to cover legal representation to present oral argument to the full court on the renewed application.

Intention to procure a miscarriage - abortifacient drug preventing implantation of embryo - not procuring 'miscarriage' so supply by pharmacists not offence

R (Smeaton) v Secretary of State for Health and Others: QBD (Mr Justice Munby): 18 April 2002

The claimant brought judicial review proceedings against the first defendant seeking an order to quash, as ultra vires, the Prescription Only Medicines (Human Use) Amendment (No 3) Order 2000, under which pharmacists were permitted to dispense Levonelle, an emergency 'contraceptive' drug commonly known as 'the morning-after pill', without the need for a prescription.

The claimant also sought a declaration that, since Levonelle was not a contraceptive but an abortifacient, unless two medical practitioners acting in good faith certified that the conditions laid down in the Abortion Act 1967 were satisfied its supply and use was a criminal offence under sections 58 and/or 59 of the Offences Against the Person Act 1861.

Richard Gordon QC, James Bogle and Martin Chamberlain (instructed by Coningsbys) for the claimant; Kenneth Parker QC, James Eadie and Simon Hattan (instructed by the Office of the Solicitor, Department of Health) for the secretary of state; David Anderson QC and Jemima Stratford (instructed by CMS Cameron McKenna) for the drug distributors; Nathalie Lieven (instructed by Leigh Day & Co) for the Family Planning Association, intervening.

Held, dismissing the application, that since, in current medical and lay understanding, the term 'miscarriage' meant the termination of a post-implantation pregnancy the results brought about by inter-uterine devices and the morning-after pill were plainly excluded, so that their prescription, supply, administration or use did not involve the commission of any offence under either section 58 or section 59 of the Offences Against the Person Act 1861.

(WLR)

Family

International child abduction - mother bringing children to England and seeking asylum - jurisdiction to order summary return pending mother's asylum appeal

In re S (Children) (Child Abduction: Asylum Appeal): FD (Mr Justice Bennett): 24 April 2002

Having brought the two children of the marriage to England on holiday the mother applied for asylum, claiming fear of persecution from the father and inability to survive as a single woman in India and naming the children as dependants.

On the father's application for the summary return of the children the mother contended that, since she was appealing against the refusal to grant her application, section 15 of the Immigration and Asylum Act 1999 precluded the court from making an order until the asylum appeal procedure had been exhausted.

Henry Setright QC and Marcus Scott-Manderson (instructed by Dawson Cornwell) for the father; David Turner QC and Camille Habboo (instructed by Winstanley-Burgess) for the mother; Jeremy Rosenblatt (instructed by the Treasury Solicitor) as amicus curiae.

Held, ordering the return of the children, that the purpose of section 15 of the 1999 Act was to prevent the executive from requiring the removal of asylum applicants pending determination of their application; that the removal of a child to its country of habitual residence was not a removal by an act of state but a removal either by the parents exercising their joint responsibility or by the court exercising its powers whether under international convention, statute or wardship; and that, accordingly, on a true construction section 15 did not prevent the court directing the return of a child to the country of its habitual residence in the child's best interests.

Human rights

Compulsory medical treatment of mental patient convicted of manslaughter - certificate by second opinion appointed doctor - duty to give reasons for granting certificate

Regina (Wooder) v Feggetter and another: CA (Lords Justice Potter, Brooke and Sedley): 25 April 2002

The claimant, a mental patient detained in a secure hospital after being convicted of manslaughter, sought judicial review of the decision of the first defendant, a second opinion appointed doctor under part IV of the Mental Health Act 1983, to certify under section 58 of the Act that he should be given anti-psychotic medication despite his lack of consent, as recommended by his responsible medical officer.

In correspondence with his solicitors the second defendant, the Mental Health Act Commission, took the view that it was the responsible medical officer to whom the patient or his advisers should look for an explanation of the proposed treatment.

The claimant contended that he was entitled to written reasons by the second opinion appointed doctor.

Edward Fitzgerald QC and Dermot Casey (instructed by Kaim Todner) for the claimant; Nathalie Lieven (instructed by the Treasury Solicitor) for the defendants.

Held, granting judicial review, that a decision to administer medical treatment to a competent non-consenting adult, though made by a doctor in the exercise of his clinical judgement and not by a tribunal following a more formal process, nevertheless fell into that category of cases involving personal liberty where fairness required and the common law implied a duty to give reasons as of right; that a second opinion appointed doctor must therefore give clear written reasons on the substantive points on which he had formed his clinical judgement to certify treatment under section 58 of the 1983 Act; and that such reasons must be disclosed to the patient by his responsible medical officer unless the officer or second opinion appointed doctor considered that such disclosure carried a risk of serious physical or mental harm.

(WLR)

Immigration

Refusal of entry - exclusion conducive to public good - right to freedom of expression engaged

R (Farrakhan) v Secretary of State for the Home Department: CA (Lord Phillips of Worth Matravers MR, Lords Justice Potter and Arden): 30 April 2002

The claimant, a citizen of the US and the spiritual leader of a religious group, wished to visit the UK to address his followers here.

The secretary of state refused him entry, directing that his exclusion was conducive to the public good, in that his presence would pose a significant threat to community relations and a potential threat to public order.

Mr Justice Turner granted the claimant judicial review by way of an order quashing the decision.

The secretary of state appealed.

On the appeal, the question arose as to whether the claimant's right to freedom of expression under article 10 of the European Convention on Human Rights was engaged.

Monica Carss-Frisk QC and Steven Kovats (instructed by the Treasury Solicitor) for the secretary of state; Nicholas Blake QC, Matthew Ryder and Raza Husain (instructed by Christian Fisher) for the claimant.

Held, allowing the appeal, that, since one object, though not the primary object, of the exclusion was to prevent the claimant exercising his right of freedom of expression by addressing meetings in the UK, article 10 was engaged; that, conferring on the secretary of state a wide margin of discretion and taking into account the limited extent of the interference with the claimant's article 10 right in that no restriction was placed on his disseminating information or opinions within the UK by any means of communication other than his presence here, the secretary of state had provided sufficient explanation for a decision which turned on his personal, informed, assessment of risk to demonstrate that his decision did not involve a disproportionate interference with freedom of expression.

(WLR)

Practice

Judgment - duty to give reasons - scope of duty

English v Emery Reimbold & Strick Ltd; D J & C Withers (Farms) Ltd v Ambic Equipment Ltd; Verrechia (Trading As Freightmaster Commercials) v Commissioner of Police of the Metropolis: CA (Lord Phillips of Worth Matravers MR, Lords Justice Latham and Arden): 30 April 2002

The unsuccessful claimants in the first two actions appealed against the judges' substantive decisions for lack of reasons.

In the third action, the claimant succeeded on part of his claim but the judge made no order as to costs.

The claimant sought permission to appeal against the costs order on the ground that the judge had failed to give reasons for his decision.

Edward Pepperall (instructed by Woolliscrofts, Stoke-on-Trent) for the claimant in the first action; Roger Giles (instructed by Browne Jacobson, Birmingham) for the defendant.

Edward Bartley Jones QC and David Casement (instructed by Bowcock Cuerden, Nantwich) for the claimant in the second action; Robert Moxon-Browne QC and John McDonald (instructed by Sheridans) for the defendant.

Ronald Walker QC and Alexander Hill-Smith (instructed by Gordon Dadds) for the claimant in the third action; James Watson QC and Jason Beer (instructed by the Solicitor for the Metropolitan Police) for the commissioner.

Held, dismissing the appeals and refusing permission to appeal, that a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, for example, interlocutory case management decisions, did not require reasons; that while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues, the resolution of which were vital to his conclusion, should be identified and the manner in which he resolved them briefly but clearly explained, so that his judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision; that unless the reason for a costs decision was clearly implicit from the circumstances, the judge should briefly explain why he made the order; that in practice it was only where an order was made with neither reasons nor any obvious explanation for the order that it was likely to be appropriate to give permission to appeal for lack of reasons; and that an unsuccessful party should not seek to overturn a judgment for inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence and submissions at trial, that party was unable to understand why the judge had reached an adverse decision.

(WLR)

Unless order - relief from sanctions - relevant factors in considering relief

R C Residuals Ltd (formerly Regent Chemicals Ltd) v Linton Fuel Oils Ltd and another: CA (Lords Justice Brooke and Kay and Sir Swinton Thomas): 2 May 2002

The claimants claimed substantial damages from the defendants who admitted liability but disputed the amount of damages recoverable.

The quantification of damages depended upon expert evidence.

The parties failed to serve expert reports within the original time limits and the trial date had to be vacated.

The judge fixed a new trial date and ordered that unless the claimants served their expert reports upon the defendants by 4pm on a certain day, they would be debarred from relying on such evidence at trial.

The claimants failed to comply with the order, serving the two reports 10 and 20 minutes late respectively.

The judge refused the claimants' application under CPR, rule 3.9 for permission to rely upon the experts' evidence at trial.

The claimants appealed.

Charles Hollander QC and Justin Mort (instructed by Lovells) for the claimant; Charles Cory-Wright (instructed by Vizards Wyeth) for the defendants.

Held, allowing the appeal, that parties were obliged to comply with unless orders as soon as possible and no later than the deadline provided; that in exercising its discretion whether or not to grant relief from sanctions for failure to comply with such an order, it was essential for the court systematically to consider each of the matters listed in CPR, rule 3.9(1); that although the judge had rightly taken into account the fact that the failure to comply with the order was not the first default and had paid proper regard to the interests of the administration of justice and the need for parties to comply precisely with such orders, he had failed to balance those matters against the list of factors in rule 3.9(1); that the delay had not destroyed the purpose of the order in meeting the trial date, had not affected the parties, was not intentional and had been explained and if relief was not granted the claimant would be deprived of the chance to pursue a substantial part of the claim; and that accordingly the balance fell in favour of granting relief from sanctions.

(WLR)

Revenue

Tax avoidance - corporation tax - payment of dividend 'transaction in securities'

Inland Revenue Commissioners v Laird Group plc: CA (Sir Andrew Morritt V-C, Lords Justice Mummery and Longmore: 30 April 2002

The taxpayer had agreed to purchase the share capital of S Ltd.

In December 1990, the taxpayer declared a dividend on its own shares of 3.5 million.

Thereafter, S Ltd paid the taxpayer a dividend of 3 million; and, because that payment was outside a group election, S Ltd accounted to the revenue for advance corporation tax (ACT) on it.

The taxpayer received the dividend as franked investment income with a corresponding tax credit.

As a result the taxpayer paid less ACT than it would have done but for the S Ltd dividend.

The taxpayer received a notice and consequential assessment under the anti-avoidance provisions in sections 703, 704 and 709 of the Income and Corporation Taxes Act 1988.

Mr Justice Lightman upheld the taxpayer's challenge to their validity [2001] STC 689.

The Crown appealed.

Michael Furness QC (instructed by the Solicitor, Inland Revenue) for the Crown; Andrew Thornhill QC and James Henderson (instructed by Ashurst Morris Crisp) for the taxpayer.

Held, dismissing the appeal and granting the taxpayer permission to appeal to the House of Lords, that the sole issue was whether the declaration and payment of the dividend by S Ltd constituted a transaction in securities as defined in section 709(2) of the 1988 Act; that consideration of decisions of the House of Lords in IRC v Parker [1966] AC 141; Greenberg v IRC [1972] AC 109 and IRC v Joiner [1975] 1 WLR 1701 led inevitably to the conclusion that all the prescribed statutory circumstances were met to bring the payment within the definition.

Value added tax - deduction of input tax for car acquired solely for business use - taxpayer acquiring car and obtaining insurance permitting private use - intention to be taken as at time of acquisition

Customs and Excise Commissioners v Upton: CA (Lords Justice Peter Gibson, Buxton and Mr Justice Neuberger): 18 April 2002

The taxpayer, a sole trader, purchased a car which he said was solely for his business purposes although he obtained insurance permitting private use.

He claimed and was allowed a deduction of input tax by a VAT tribunal.

The commissioners appealed and Sir Andrew Morritt V-C allowed their appeal.

The taxpayer appealed.

The Court of Appeal was asked to construe article 7(2G)(b) of the VAT (Input Tax) Order 1992 (SI 1992/3222) as inserted by VAT (Input Tax) (Amendment) (No3) Order 1995 (SI 1995/1666).

Penelope Hamilton (instructed by Dechert) for the appellant; Nicholas Paines QC and Raymond Hill (instructed by Solicitor, Customs and Excise) for the commissioners.

Held, dismissing the appeal, that a taxpayer would be disqualified from claiming input tax as someone not intending to use a motor car exclusively for the purposes of a business carried on by him if he intended to make it available to any person including himself for private use; that the meaning of 'make it available' was the crucial issue; that the test was of intention to make the car available at the time of its acquisition; that the taxpayer's deliberate action in acquiring the car and obtaining insurance permitting private use was to make the car available to himself for private use; and that, accordingly, he must be taken to have intended that result in the absence of contrary evidence, even if he did not in fact use the car privately.

Road Traffic

Highway authority's liability to victim of road traffic accident - no duty to paint warnings on road - no liability for breach of duty to promote road safety absent pre-existing irrational failure to act

Gorringe v Calderdale Metropolitan Borough Council: CA (Lords Justice Potter and May and Sir Murray Stuart-Smith): 2 May 2002

The claimant was driving along a B road when she collided with a bus on the crest of a hill, suffering severe injuries.

The bus driver was not at fault.

The claimant brought an action in negligence and breach of statutory duty against the highway authority.

The judge held that the authority was liable under section 41 of the Highways Act 1980 for failing to replace an obliterated 'slow' marking painted on the road, and in breach of the duty in section 39 of the Road Traffic Act 1988 to promote road safety and its parallel common law duty.

He found no contributory negligence and awarded damages to the claimant.

The authority appealed.

Mark Turner QC (instructed by Hill Dickinson, Manchester) for the council; Giles Wingate-Saul QC and Mark Laprell (instructed by Clarksons & Steele, Halifax) for the claimant.

Held, allowing the appeal (Lord Justice Potter dissenting in part), that a highway authority was under no duty to paint warning markings on a road surface under section 41 of the 1980 Act, and therefore failure to do so was not negligent; and that (per Lord Justice May and sir Murray Stuart-Smith) the highway authority's statutory duty to promote road safety under section 39 of the 1988 Act was chiefly concerned with preventing or reducing accidents and gave rise to a parallel common law duty of care only where on the evidence, before the accident, the site should have been regarded as an accident blackspot and the authority had irrationally failed to take appropriate measures to prevent accidents at that site which, on the facts of the claimant's case, was not established.

Trusts

Resulting trust - joint mortgagors - beneficial interest in property not established by provision of security for loan

Goodman v Carlton: CA (Lords Justice Ward, Mummery and Laws): 29 April 2001

In 1993, a sitting tenant purchased a property from his landlord.

He had insufficient funds to finance a mortgage; and the defendant, who lived elsewhere but had had a long-standing relationship with him, agreed to assume liability for the loan as joint mortgagor.

The property was conveyed into their joint names.

She made no contribution to mortgage repayments and there was no declaration as to the beneficial interests in the property.

The deceased died intestate and the defendant moved into the property.

The judge declared that she held it on resulting trusts for the deceased's estate absolutely.

The defendant appealed.

Grant Crawford (instructed by Anthony Gold) for the defendant; Alexandra Mason (instructed by C L Clemo & Co) for the adminis-trator of the deceased's estate.

Held, dismissing the appeal, that the issue was whether the defendant, having made no mortgage payments, had by providing security for the loan made a contribution entitling her to a beneficial interest; and that although in principle such an agreement might be treated as a contribution, in the circumstances and the absence of any declaration of intention, the joint mortgage gave rise to the property being held on resulting trusts for the sole benefit of the deceased's estate.

Local authority statutory regulator of residential care home - proprietor bringing action in negligence for economic loss caused by authority's staffing require-ments - claim justiciable

Douce and another v Staffordshire County Council: CA (Lord Justice Potter and Sir Denis Henry): 19 April 2001

The claimants ran residential homes providing care for the elderly which were regulated by the defendant council pursuant to the Registered Homes Act 1984.

The claimants brought proceed-ings against the council alleging negligence in construing provisions in the 1984 Act as requiring 'staffing to capacity' of homes not occupied to full capacity.

The claimants sought to recover overpayment of wages exceeding 300,000.

The council sought summary judgment on its defence in which it contended the claim was non-justiciable because as statutory regulator under the Act it had discretion to act and owed no duty of care to the claimants.

The judge refused summary judgment, holding it to be arguable that the council owed a duty of care and that the issues necessitated a trial.

The council appealed.

Edward Faulks QC and Paul Stagg (instructed by Weightmans, Manchester) for the council; Edward Bartley Jones QC and Digby Jess (instructed by Rowe Cohen, Manchester) for the claimants.

Held, dismissing the appeal, that in an area of developing jurisprudence the issues, turning on questions of mixed fact and law, required a full trial to ascertain whether the council, as statutory regulator, owed a duty of care to owners and managers of care homes to avoid negligently causing economic loss.