Law reports

CONFIDENTIAL INFORMATION

Publication of details of celebrity's private life without consent - publication justifiable in public interest - newspaper exempt from data protection obligations

Campbell v Mirror Group Newspapers plc: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Chadwick and Keene): 14 October 2002

The claimant was an internationally famous fashion model who had courted publicity, had volunteered information to the media about her private life and had averred publicly and untruthfully that she did not take drugs.

A newspaper published articles which disclosed her drug addiction, the fact that she was receiving therapy with Narcotics Anonymous, gave details of its meetings, which she was attending and showed photographs of her in a street as she was leaving a meeting.

The claimant claimed damages against the newspaper publisher for breach of confidentiality and compensation under section 13 of the Data Protection Act 1998.

The judge gave judgment for the claimant.

The publisher appealed.

Desmond Browne QC, Richard Spearman QC and Mark Warby QC (instructed by Davenport Lyons) for the publisher; Andrew Caldecott QC and Antony White QC (instructed by Schilling & Lom & Partners) for the claimant.

Held, allowing the appeal, that the detail and photographs were a legitimate part of the journalistic package designed to demonstrate that the claimant had deceived the public and publication was justified in the public interest; that hard copy which reproduced personal data previously processed by means of equipment operating automatically formed part of the processing and fell within the scope of the Data Protection Act 1998; that the newspaper was entitled, after publication, to invoke section 32 to exempt it from its obligations under the Act where it reasonably believed that publication was in the public interest and that compliance was incompatible with the special purpose of journalism; and that, in the circumstances, the conditions of exemption were satisfied and the Act was not infringed.

(WLR)

CRIMINAL

Convicted armed robber sentenced to be flogged - instrument to be used not specified - sentence constitutional but incomplete

Pinder v The Queen: PC (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Millett): 23 September 2002

The defendant pleaded guilty to various armed robbery and related offences and was sentenced to terms of imprisonment totalling 30 years and to a flogging to be administered in two instalments of three strokes each.

His appeal was dismissed by a majority of the Court of Appeal of the Bahamas.

He appealed to the Privy Council, contending that the sentence of flogging, imposed under part II of the Criminal Law (Measures) Act 1991, was an inhuman and degrading punishment which infringed article 17(1) of the Constitution of the Bahamas 1973, and that the reintroduction of corporal punishment by the 1991 Act following its abolition by the Penal Code (Amendment) Act 1984 could not be justified under article 17(2) of the Constitution as something 'done under the authority of any law' authorising a 'description of punishment that was lawful in the Bahama Islands immediately before 10 July 1973.'

Nicholas Blake QC and Julian Knowles (instructed by Arnold & Porter) for the defendant; Sir Godfray le Quesne QC and Howard Stevens (instructed by Charles Russell) for the Crown.

Held, dismissing the appeal (Lords Nicholls of Birkenhead and Hope of Craighead dissenting), that although flogging was an inhuman and degrading punishment, it would nevertheless have remained constitutional under the transitional provisions of article 30(1) of the Constitution if it had not been abolished; that its reintroduction was protected from unconstitutionality by article 17(2) which, unlike article 30(1), referred not just to pre-existing laws but to 'any law' and clearly permitted the future reintroduction of any description of punishment authorised by a law which would otherwise be circumscribed by article 17(1); that, however, the sentencing court's failure to specify, under section 4 of the 1991 Act, whether a cat-o'-nine-tails or a rod was to be used for the flogging rendered the sentence, though lawful, incomplete; and that the case should, therefore, be remitted to the Court of Appeal to specify the instrument.

(WLR)

Retrial - prosecution failing to re-arraign defendant within two month time limit - duty on defence lawyers to ensure effect given to court order for re-arraignment

R v Jones (Paul Garfield): CA (Lord Justice Kay, Mr Justice Wright and Mr Justice Henriques): 8 October 2002

The defendant's appeal against conviction was allowed and a retrial ordered.

Owing to the absence of trial counsel for both the prosecution and the defence, the plea and directions hearing was adjourned to a date just within the two-month time limit for re-arraignment.

The Crown Prosecution Service, unaware that arraignment had not taken place, asked the Crown Court listing office for the matter to be put back a further week.

The listing officer contacted the defendant's solicitor as to the convenience of that date.

Although she knew that the later date was outside the time for re-arraignment, she said, after consulting junior counsel, that she had 'no views one way or the other'.

When the case next came before the court, after expiry of the two-month limit, defence counsel took the point that re-arraignment could not now take place.

The Crown applied to the Court of Appeal for leave to re-arraign in accordance with section 8 of the Criminal Appeal Act 1968 (as amended).

Andrew Munday QC (instructed by the Crown Prosecution Service, Croydon) for the Crown; Kim Hollis QC and Navjot Sidhu (instructed by JD Spicer & Co) for the defendant.

Held, granting the application, that there was a duty on solicitors and counsel for the defence to ensure that effect was given to an order of the court that the defendant be re-arraigned within two months of his successful appeal against conviction; that it was not open to them to do nothing even if that might have favoured their lay client; that the test in section 8(1B) of the 1968 Act as to whether the prosecution had acted with 'due expedition' was not as strict as the test of 'due diligence' in the custody time limits legislation, and since the delay in re-arraignment in this case was not likely to affect the hearing date of the retrial, the prosecution had shown good and sufficient cause for a retrial in spite of the lapse of time.

HOUSING

Homelessness - time limit for appeals - documents put through court's letter box after office hours properly delivered to court

Van Aken v Camden London Borough Council: CA (Lords Justice Ward, Mummery and Jonathan Parker): 11 October 2002

The applicant, who was homeless, sought to appeal to the county court against a decision by the local authority, on his request, for a review under section 202 of the Housing Act 1996.

By section 204(2) of that Act such an appeal 'must be brought within 21 days' of notification of the decision.

On the 21st day after notification, the applicant's solicitors arrived at the county court office after it had closed and at 6.30pm posted the appropriate documents through the letter box.

The judge, having referred to part 52 of the Civil Procedure Rules 1998 (CPR), declined jurisdiction to hear the appeal on the ground that it had not been brought in time and that he had no power to extend the time limit.

The applicant appealed.

Jan Luba QC and Rajeev Thacker (instructed by John & Saggar) for the applicant; Ranjit Bhose (instructed by Borough Solicitor, Camden London Borough Council) for the local authority.

Held, allowing the appeal, that under CPR and section 204 of the Housing Act 1996, an appeal was brought when the notice of appeal was filed, that is to say, delivered to the court office; that delivery was a unilateral act and not a transactional process; and that, accordingly, mere delivery at the court without receipt by an officer was sufficient to establish that the applicant's appeal had been brought within the time limit so as to confer jurisdiction on the county court to hear the matter.

PRISONS

Prisoner in custody - right of access to legal adviser - 'legal adviser' including Italian avvocato

R (Van Hoogstraten) v Governor of HM Prison Belmarsh: QBD (Mr Justice Jackson): 23 September 2002

After being convicted of manslaughter, the prisoner was remanded in custody pending sentencing.

He dismissed his legal team and instructed an Italian avvocato (advocate) to advise and act for him in relation to mitigation and a possible appeal.

It was intended that, for the purposes of the sentencing, the avvocato would instruct English solicitors who would instruct counsel to represent the prisoner at the hearing and make the plea in mitigation.

Following an initial visit, the prison governor refused to allow the avvocato access to the prisoner on the ground that he was not a 'legal adviser' for the purposes of rule 2 of the Prison Rules 1999 and, therefore, that the prisoner was not entitled to legal visits from him pursuant to rule 38(1).

The prisoner sought judicial review.

Alan Newman QC, Jonathan Lennon and Alison Dorrell (instructed by Attridge) for the prisoner; Jeremy Johnson and Jason Beer (instructed by the Treasury Solicitor) for the defendant.

Held, granting judicial review, that the term 'legal adviser' in rule 2 embraced any lawyer chosen by the prisoner who was entitled to represent him in criminal proceedings to which he was a defendant, and covered an Italian avvocato who conformed with the requirements of the European Communities (Services of Lawyers) Order 1978 (implementing Community rules on the freedom of lawyers to provide services); that section 3(1) of the Human Rights Act 1998 required the court to give effect to the 1999 rules in accordance with the rights under the European Convention on Human Rights; that since the prisoner was in the midst of the trial process, he continued to enjoy the rights under article 6 of the convention to have adequate time and facilities for the preparation of his plea in mitigation (article 6(3)(b)) and to defend himself in regard to sentencing (article 6(3)(c)); and that, accordingly, the prisoner was entitled under rules 2 and 38(1) to be visited by the avvocato.

SOCIAL SECURITY

Asylum seeker applying for accommodation following domestic violence and abduction - council deciding applicant ineligible for support under National Assistance Act 1948 - no power to provide support under Local Government Act 2000 but decision unreasonable

R (Khan) v Oxfordshire County Council: QBD (Mr Justice Moses): 4 October 2002

The claimant, who was subject to immigration control under section 115 of the Immigration and Asylum Act 1999, was the victim of domestic violence and abduction and applied to the local authority for support and secure accommodation.

The local authority considered her eligibility under section 21(1)(a) of the National Assistance Act 1948, which required it to provide residential accommodation for persons who, by reason of age, illness, disability or any other circumstances, were in need of care and attention which was not otherwise available to them, and decided that the criteria for assistance were not met because section 21(1A) of the 1948 Act provided that persons subject to immigration control under section 115 of the 1999 Act were ineligible for support if their need for care and attention had arisen solely because of destitution.

The claimant sought judicial review.

Hugh Southey (instructed by Turpin & Miller, Oxford) for the claimant; Jonathan Swift (instructed by solicitor to Oxfordshire County Council, Oxford) for the local authority.

Held, granting judicial review, that the two statutory avenues open to a person subject to immigration control and seeking state support were section 21(1)(a) of the 1948 Act and section 2 of the Local Government Act 2000, under which local authorities had a broad discretionary power to provide financial assistance; that, by virtue of section 3 of the 2000 Act, assistance under section 2 could not be provided where a local authority was prevented from doing so by virtue of a prohibition arising under any other enactment; that the limitation in section 21(1A) of the 1948 Act fell within the meaning of section 3 of the 2000 Act; but that, despite applying the correct test, the local authority's decision under section 21 was unreasonable.

UTILITIES

Water supply and sewerage - flats converted from office block - charge payable for connection to services even though offices previously connected

Thames Water Utilities Ltd v Hampstead Homes (London) Ltd: CA (Lord Justice May and Mr Justice Bodey): 8 October 2002

A property developer converted two office blocks, which were connected to the domestic water supply and public sewer, into 109 flats.

At the developer's request, the statutory water and sewerage undertaker connected the flats to the water and sewer services and charged the developers 42,790 for doing so.

The developers refused to pay.

On the statutory undertaker's claim to recover the charges the judge dismissed the claim, holding that the connections were in respect of premises previously connected and that the statutory undertakers were, therefore, not entitled to levy a charge under section 146(2) of the Water Industry Act 1991.

James Watson QC (instructed by Thames Water Utilities UK Legal Services, Reading) for the statutory undertaker.

The developer did not appear and was not represented.

Held, allowing the appeal, that section 146(2) was concerned with the connection of water and sewerage services to premises previously not so connected and had to include new premises likely to place an additional burden on the water and sewerage system; that where existing buildings were converted it was a question of fact and degree whether the result was, or included, the construction or connection of premises never previously connected, so as to entitle the statutory undertaker to levy connection charges under section 146(2)(a)(b) of the 1991 Act, or whether the premises retained the identity of premises previously connected; and that the 109 flats were new premises not previously connected and the statutory undertaker was entitled to charge in respect of each.