Law reports

CRIMINAL

Confiscation order proceedings - postponement of determination to await judgment in another case - postponement legitimate

R v Jagdev: CA (Lord Justice Potter, Mr Justice Rafferty and Mr Justice Hedley): 31 May 2002

Following the appellant's conviction of conspiracy to supply class A drugs, he was sentenced to 11 years' imprisonment.

Confiscation order proceedings were postponed; within six months of the conviction they were further postponed to await decisions in HM Advocate and Another v McIntosh [2001] 3 WLR 107 (see [2001] Gazette, 15 March, 43); and PC and R v Benjafield [2001] 3 WLR 75, CA (see [2001] Gazette, 22 March, 41).

Those cases were expected to deal with arguments raised that the assumptions and reverse burden of proof provisions in the Drug Trafficking Act 1994 might not be compliant with article 6 of the European Convention on Human Rights, the judge having ruled that that amounted to an 'exceptional circumstance' in section 3(3) of the Act.

At the postponed hearing, the judge made a confiscation order, with two years' imprisonment in default of payment.

The appellant appealed on the ground, among other things, that the judge had lacked jurisdiction to postpone the hearing beyond six months because the 'further information' contemplated in section 3(1) was restricted to things financial and did not extend to things legal, that a potential development in legal thinking could never amount to exceptional circumstances.

Tristan Chaize (instructed by Menon & Co) for the appellant; Christopher Foulkes (instructed by the Crown Prosecution Service) for the Crown.

Held, dismissing the appeal, that the purpose of the power to postpone in section 3 was to enable the judge to postpone the hearing where that was regarded as desirable in order to be able to reach a fair conclusion on the issue of confiscation; that the judge was entitled to regard the content of the expected judgments as 'further information' within the meaning of section 3(1) which she would require; that, accordingly, the judge had validly exercised her power under section 3 to postpone beyond the six-month period; but that the sentence of two years' imprisonment in default of payment would be reduced to 18 months.

(WLR)

CROWN

Former serviceman suing Crown in negligence - statute exempting Crown from liability - deprivation of cause of action not incompatible with right to fair trial under European Convention on Human Rights

Matthews v Ministry of Defence: CA (Lord Phillips of Worth Matravers MR, Lord Justice Mummery and Lady Justice Hale): 29 May 2002

Between 1955 and 1968, the claimant served as an electrical mechanic in the Royal Navy.

In September 1999, he was diagnosed as suffering from asbestos related injuries.

He brought proceedings for damages for personal injuries against the Ministry of Defence for negligence or breach of statutory duty in exposing him to asbestos fibres and dust during his service in the Navy.

The ministry claimed immunity from liability in tort under section 10 of the Crown Proceedings Act 1947, which applied in respect of events occurring before1987.

On a trial of preliminary issues, Mr Justice Keith [2002] EWHC 13 (QB) held that section 10 was incompatible with the right to a fair trial in article 6(1) of the European Convention on Human Rights.

The ministry appealed.

David Pannick QC, Philip Sales and Kate Gallafent (instructed by the Treasury Solicitor) for the ministry.

Richard Gordon QC and Robert Weir (instructed by Bond Pearce) for the claimant; Conor Gearty (instructed by Linder Myers) for the Post Traumatic Stress Disorder Group Action, intervening.

Held, allowing the appeal, that article 6(1) was concerned with judicial process and included entitlement to a fair, public and reasonably prompt hearing in respect of any assertion of an infringement of a civil right; that whether a civil right existed was a matter of the substantive law of the contracting states; that statutory rules and regulations regulating court procedure were subject to the requirements of article 6, whereas those delimiting the rights and liabilities which arose under civil law were substantive in nature and article 6 had no impact upon them; that the effect of section 10 in substituting potential entitlement to a pension for a cause of action in negligence was substantive and not procedural; and that, in those circumstances, article 6 was not engaged and there was no incompatibility between section 10 and article 6.

(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): CA (Lords Justices Thorpe, Laws and Rix): 28 May 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.

Her claim was rejected and she appealed.

Meanwhile, the father applied for the summary return of the children, whom he said had been abducted.

Mr Justice Bennett (see [2002] Gazette, 30 May, 33) ordered their return on the ground that it was in their best interests.

The mother appealed, contending that section 15 of the Immigration and Asylum Act 1999 prohibited the court from returning the children pending resolution of her asylum appeal.

David Turner QC and Camille Habboo (instructed by Winstanley Burgess) for the mother; Henry Setright QC and Ian Lewis (instructed by Dawson Cornwell) for the father; Khawar Qureshi (instructed by the Treasury Solicitor) as friend of the court.

Held, dismissing the appeal, that the words 'remove' and 'required to leave' in section 15 were terms of art in the law relating to immigration; that they were directed to the immigration authorities and imposed a negative duty in the context of immigration law and practice, but created no substantive exception to the obligations created by article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, as scheduled to the Child Abduction and Custody Act 1985, or to the exercise by a judge of the wardship jurisdiction; and that, accordingly, the mother's asylum claim did not prevent a family judge directing the children's return to their country of habitual residence where that was in their best interests.

(WLR)

IMMIGRATION

Kurd fearing persecution by Iraqi government outside autonomous region of Iraq - Home Secretary undertaking not to return Kurds to unsafe part of Iraq - not entitled to refugee status

Gardi v Secretary of State for Home Department: CA (Lords Justices Ward and Keene and Sir Martin Nourse): 24 May 2002

The claimant, an ethnic Kurd living in the Kurdish autonomous region of Iraq, entered the UK illegally and unsuccessfully applied for asylum.

He was notified of his removal by scheduled airline to Baghdad.

A special adjudicator concluded that in Baghdad he would be at risk of harm from the Iraqi government and granted him refugee status.

The Home Secretary's appeal was allowed by the Immigration Appeal Tribunal, which held that as a result of the 2001 undertaking by the Home Secretary that Kurds would not at present be returned to their home area via Baghdad, the claimant had failed to establish risk of persecution and thus was not a refugee.

The claimant appealed.

Nicholas Blake QC and Raza Husain (instructed by Gill & Co) for the claimant; Robin Tam (instructed by the Treasury Solicitor) for the Secretary of State.

Held, upholding the tribunal's decision but remitting the case for rehearing on other grounds, that to be a refugee the claimant had to satisfy article 1A(2) of the 1951 Convention on the Status of Refugees; that a person was not a refugee if there were a safe part of his country to which he could return; and that in consequence of the undertaking preventing his removal until a safe method of travel to his home region was available the claimant was unable to establish refugee status.

LANDLORD AND TENANT

Beneficiary under bare trust of registered land receiving payments from proprietor under tenancy granted by beneficiary to proprietor - proprietor charging property to bank - beneficiary not having overriding interest in property so not entitled to register caution on title

UCB Group Ltd v Hedworth: CA (Lord Justice Jonathan Parker and Sir Christopher Slade): 24 May 2002

The defendant's husband was the registered proprietor with absolute title of a property in South Shields.

In 1990, he granted the claimant bank a first charge over the property which was registered in January 1991.

In 1997, the defendant entered a caution on the title to the property.

It was accepted for present purposes that, as at the date of the claimant's charge, the husband had held the property on a bare trust for the defendant, and that she had been in receipt of weekly payments made to her by her husband under a tenancy granted previously by her to her husband in her capacity as beneficial owner.

The claimant made a claim for the vacation of the caution and applied for summary judgment.

The deputy judge refused.

The claimant appealed.

Mark Wonnacott (instructed by Halliwell Landau) for the claimant; Geoffrey Zelin (instructed by Wholley Goodings) for the defendant.

Held, allowing the appeal, that a beneficiary under a bare trust of registered land who was in receipt of periodical payments made by the registered proprietor under a tenancy by estoppel of the land granted by the beneficiary was not in receipt of 'rents' of the land within the meaning of section 70(1)(g) of the Land Registration Act 1925 and thus was not entitled to an overriding interest; and that, accordingly, the claimant was entitled to summary judgment.

Statutory notice of assured shorthold tenancy - landlord serving notice on tenant's agent - effective service

Yenula Properties Ltd v Naidu: CA (Lords Justices Robert Walker and Rix and Lady Justice Arden): 23 May 2002

The landlord and the tenant entered into a tenancy agreement.

Before the start of the tenancy, the landlord served a notice on the licensed conveyancer who had acted for the tenant, stating that the tenancy was to be an assured shorthold tenancy.

When the landlord sought to terminate the tenancy, the tenant argued that service on a tenant's agent was not effective service for the purposes of section 20 of the Housing Act 1988 and that therefore the tenancy was an assured tenancy.

The trial judge's finding that the notice had not been properly served was overturned by Mr Justice Lloyd in the Chancery Division.

The tenant appealed.

Judith Jackson QC and Nigel Thomas (instructed by Rippon Patel & French) for the tenant; Jonathan Brock QC and Emily Windsor (instructed by SJ Berwin) for the landlord.

Held, dismissing the appeal, that the general principle was that it was possible for good service of a landlord's notice to be effected by serving it on the duly authorised agent of the tenant; that it was right to follow that principle with regard to section 20 notices; and that, since the licensed conveyancer had been the tenant's authorised agent, the notice had been validly served.

PLANNING

Judicial review of planning permission - appeal to House of Lords from refusal of leave to apply - time running from date of grant

R (Burkett) v Hammersmith and Fulham London Borough Council and another: HL (Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Millett and Lord Phillips of Worth Matravers): 23 May 2002

In July 1999, solicitors for the applicants wrote to the respondent local planning authority, stating that an environmental statement accompanying an application for planning permission by the interested party was inadequate.

On 15 September 1999, the authority resolved, subject to conditions, that outline permission be granted.

On 6 April 2000, the applicants sought permission to apply for judicial review of the resolution, and on 12 May 2000 outline permission was granted, the authority's conditions having been met.

The judge refused the applicants' permission to apply for judicial review on the ground that the application was out of time under Rules of the Supreme Court (RSC) order 53, rule 4(1) (now Civil Procedure Rules (CPR), rule 54.5(1)).

The Court of Appeal refused a renewed application and refused leave to appeal.

Leave was granted to the second applicant, the first applicant being deceased, by the House of Lords.

Robert McCracken, Richard Harwood and Angela Ward (instructed by Richard Buxton) for the second applicant; Timothy Straker QC and Andrew Tabachnik (instructed by Head of Legal Services, Hammersmith and Fulham London Borough Council) for the local planning authority; Robin Purchas QC and Joanna Clayton (instructed by Masons) for the interested party.

Held, allowing the appeal and remitting the matter to the High Court for decision on the substantive issues, that a renewed application to the Court of Appeal under RSC, order 59, rule 14(3) was a true appeal and, where the Court of Appeal had granted leave to appeal and heard the appeal, the House of Lords had jurisdiction to entertain an appeal from their decision; that grounds for an application for judicial review of a grant of planning permission first arose, under RSC, order 53, rule 4(1) and CPR, rule 54.5(1), on the grant of permission; and that the application could be amended to be directed against the grant rather than the resolution.

(WLR)

PRISONS

Automatic life sentence - Parole Board delaying decision on whether to allow release on licence for up to three months from end of tariff period - violation of prisoners' convention rights

R (Noorkoiv) v Secretary of State for the Home Department and Anor: CA (Lord Woolf CJ, Lords Justices Simon Brown and Buxton): 30 May 2002

Having served the tariff period of his sentence, a prisoner serving an automatic life sentence was entitled to a decision from the Parole Board on whether he should be released on licence.

The board met quarterly to consider the cases of prisoners whose tariffs had expired in the previous quarter.

The prisoner sought judicial review of the board's refusal to bring forward hearing of his case.

His application was dismissed.

He appealed.

Kris Gledhill (instructed by Turners) for the prisoner; Jenni Richards (instructed by the Treasury Solicitor) for the secretary of state and the board.

Held, allowing the appeal, that detention between the expiry of the tariff period and the determination of the lawfulness of continued detention had to be justified under article 5(4) of the European Convention on Human Rights and could not generally be excused by 'administrative necessity' or lack of resources; that the present arrangements for determining the status of both discretionary and automatic life prisoners infringed article 5(4) and the Parole Board's reasons for not hearing cases before the expiry of the relevant tariff period were unacceptable and misconceived; and that cases could be heard in the pre-expiry period without putting any greater burden on resources.