Law reports

COSTS

Case involving welfare of children - unsuccessful late application by newspaper publishers for matter to be heard in public - when costs orders to be made against publishers

A and others v Times Newspapers Ltd and others: Fam D (Mr Justice Sumner): 27 November 2002

Two fathers applied for a specific issue order under section 8 of the Children Act 1989, directing that the young child involved in each case be given the appropriate immunity.

Considerable press interest was aroused since the measles, mumps and rubella inoculation was involved.

Having been refused permission to come into court on the first day of the hearing, several newspaper publishers applied for the matter to be heard in public.

That application was opposed by all parties and one full day of the hearing and part of a second was lost as a result.

The application was refused.

The other parties applied for orders for costs against the publishers.

Jonathan Cohen QC, Kate Branigan and Geoffrey Kelly for the fathers; Elizabeth Anne Gumbel QC, Mark Courtney Stewart and Lucinda Davis for the mothers; Vera Mayer for Children and Family Court Advisory and Support Service; Jacob Dean for the newspaper publishers.

Held, that it was for the court alone to decide whether any part of a case involving children should be heard in open court; that it was for the press and media to consider, before any hearing, whether to apply for the normal restrictions on publicity to be lifted; that they were unlikely to incur the risk of an adverse costs order on such a prior application if they presented an arguable, though unsuccessful, case, whereas a late application, even though arguable on the merits, which caused unnecessary disruption and increased expense could well be regarded as an improper application; but that, in view of a prior order which had raised the expectation of a hearing in open court, no order for costs would be made against the newspaper publishers.

CRIMINAL

Sentencing - domestic burglary - guidelines

R v McInerney; R v Keating: CA (Lord Woolf, Chief Justice, Mr Justice Silber and Mr Justice Grigson): 19 December 2002

Two defendants, who had each pleaded guilty to domestic burglary, appealed against their sentences.

On the appeals, the Court of Appeal considered advice from the sentencing advisory panel proposing a revision of the sentencing guidelines for domestic burglaries.

Adrienne Knight for McInerney and Anna Price for Keating (both assigned by the Registrar of Criminal Appeals); Mark Dennis (instructed by CPS, headquarters) for the Crown.

Held, reducing both sentences, that the following guidance must be read subject to the need to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender; that the number of offenders released from prison for offences such as domestic burglary who had been deterred from re-offending by their first experience of incarceration was not substantial; that, if they were not deterred by their first period of incarceration, it was even less likely that a moderately longer second sentence would achieve anything; that there was little that the Prison Service could do to tackle re-offending behaviour during short sentences and the prison system was currently grossly overcrowded, which exacerbated that situation; that, therefore, in cases in which courts would otherwise be looking at starting points of up to 18 months' imprisonment for domestic burglary following a trial, the initial approach should be to impose a community sentence subject to conditions that ensured that it was an effective punishment and one which offered action on the part of the Probation Service to tackle the offender's criminal behaviour and, when appropriate, his underlying problems, such as drug addiction; that only if the court was satisfied that the offender had demonstrated by his behaviour that punishment in the community was not practicable should a custodial sentence be resorted to; that if an offender did not comply with the requirements of a community punishment, and in particular if he committed further offences during the currency of that sentence, he should be re-sentenced; that the fact that an offender had not complied with the requirements of a community punishment would be a strong indicator that a custodial sentence, and possibly a substantial sentence, was necessary; that where a custodial sentence was necessary it should be no longer than necessary; and that such a new approach to sentencing should, and was intended to, provide better protection for the public and to result in some reduction in the use of custody, although in the case of repeat offenders and aggravated offences long sentences would still be necessary.

See Feature, page 18 (see [2003] Gazette, 13 February)

DISCRIMINATION

Equal treatment - scheme providing compensation for British prisoners of war interned by Japanese - exclusion of Gurkha veterans irrational

R (Gurung) v Ministry of Defence: QBD (Mr Justice McCombe): 27 November 2002

In 2000, the UK government announced the introduction of a scheme to award ex gratia compensation to British citizens who had been prisoners of war of the Japanese during the Second World War.

Under the rules of the scheme, British veterans who had served in the colonial Indian Army were also eligible for compensation if they had been so eligible under the terms of the 1951 peace treaty with Japan.

In practice, that meant that Europeans were eligible for compensation whereas 'native' soldiers and officers were not.

The claimants, Gurkha veterans who had served in the Indian Army during the Second World War, having been refused compensation under the scheme, sought judicial review on the basis that it was contrary to the principle of equality before the law, and therefore irrational, to exclude them from the scheme by virtue of their race and/or an infringement of the claimants' rights under articles 8 and/or 14 of the European Convention on Human Rights.

Nicholas Blake QC and Aileen McColgan (instructed by Public Interest Lawyers) for the claimants; Philip Sales and Karen Steyn (instructed by the Treasury Solicitor) for the defendant.

Held, quashing the decision to exclude the applicants from the scheme, that the common law principle of equality before the law was far wider than article 14, which added nothing to the case; that, except where compellingly justified, rational distinctions could never be based on race, colour or belief; that, while it was understandable in both 1951 and 2000 for the UK government to see no need to provide for citizens of other states which had concluded treaty arrangements with Japan in their own right, that rationale did not apply to the Gurkhas since Nepal had not concluded its own treaty; that the Gurkhas' exclusion from the 1951 compensation arrangements because they were subject to (colonial) Indian military law, whereas Britons in the Indian Army were subject to British military law, was based on considerations of race and the continued adherence to that distinction in 2000 contravened the principle of equality before the law and was irrational; and that the defendant should reconsider the claimants' application.

IMMIGRATION

Application for asylum - applicant claiming to be at risk of persecution from girlfriend's family - adjudicator's finding that family's actions not amounting to persecution not reviewable

R (Mohamad) v Secretary of State for the Home Department: QBD (Mr Justice Munby): 29 November 2002

The claimant came to England from the Kurdish Autonomous Area of Iraq (KAA), where he claimed that he was at risk of persecution from his girlfriend's father or brother, and applied for asylum.

By letter dated 10 January 2001, the secretary of state informed him that his application had been unsuccessful, and on 26 January 2001, the secretary of state issued directions that he was to be removed to Iraq.

The claimant appealed to an immigration adjudicator.

On 27 July 2001, the adjudicator dismissed the claimant's appeal on the basis that, taken at its highest, the likely actions of his girlfriend's father or brother did not amount to persecution within his home area for the purposes of the Geneva Convention Regarding the Status of Refugees 1951 (Cmd 9171).

There being no statutory right of appeal to the Immigration Appeal Tribunal, the claimant sought judicial review of the adjudicator's decision.

Stephen Vokes and Glenda Vencatachellum (instructed by French & Co, Nottingham) for the claimant; Stuart Catchpole QC and Robin Tam (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the application, that the adjudicator had made a number of adverse findings as to the claimant's credibility which had not been challenged; that, even absent the customary undertaking from the Home Office, there was no likelihood of the claimant being returned to any part of Iraq other than the KAA; that the risk of persecution were the claimant returned to some other part of Iraq therefore did not need to be considered; that the question of whether political organisations within the KAA such as the Patriotic Union of Kurdistan and the Kurdistan Democratic Party were capable of providing 'the protection of that country' for the purposes of article 1A(2) of the Geneva Convention did not need to be determined since there was no persecution from which the applicant required protection; that the removal directions dated 26 January 2001 remained valid, notwithstanding that there was little immediate prospect of their being carried out; and that while persecution could come about as a result of the state failing to protect an individual from the acts of others, the adjudicator's ruling that the alleged actions of his girlfriend's father or brother were incapable of amounting to persecution was a finding of fact, not law.

LANDLORD AND TENANT

Leasehold enfranchisement - small part of property underlying adjoining building - not precluding enfranchisement subject to freeholder's rights in respect of underlying part

Malekshad v Howard de Walden Estates Ltd: HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Millett and Lord Scott of Foscote): 5 December 2002

Premises comprising a large townhouse and its adjoining mews building were demised under a single head lease and converted into two separate residential properties, each being structurally attached to the other at ground floor and basement level.

The position of the dividing walls was such that 27 square metres of the main house's basement underlay the ground floor of the mews property.

The occupier of the main house, who had taken an assignment of the head lease, applied under part I of the Leasehold Reform Act 1967 to enfranchise the entire demised premises.

The judge held that he could not enfranchise the entire premises as they did not constitute a single 'house' for the purposes of section 2(1) of the Act; and that he could not enfranchise the main house alone since section 2(2) of the Act precluded the enfranchisement of a house 'of which a material part lies above or below a part of the structure not comprised in the house' and the underlying part was material to the mews property in that it was load-bearing and the freehold owners would not be able to enforce its keeping in repair after enfranchisement.

On the applicant's appeal, the Court of Appeal [2002] QB 364, held that the entire demised premises could reasonably be called a 'house' for the purposes of section 2(1) so as to allow their enfranchisement.

The freehold owners appealed.

Judith Jackson QC and Timothy Harry (instructed by Speechly Bircham) for the freehold owners; Paul Morgan QC and Edward Peters (instructed by Mishcon de Reya) for the applicant.

Held, allowing the appeal, that since there was a vertical division between the two properties, section 2(1)(b) of the Act prevented the entire premises from being a 'house' for 1967 Act purposes; but (Lord Hobhouse of Woodborough dissenting) that 'material part' in section 2(2) referred to the relationship between the part in question and the house of which it formed part, not to its significance to the adjoining property, and judged by its relationship to the main house the underlying part was of no materiality; that, where a freehold owner wished to retain ownership and control of an overlying or underlying part because of concerns over enforcing positive covenants, its remedy was to serve a notice under section 2(5) of the Act in order to bring about the exclusion of the part from the house to be enfranchised; and that, accordingly, the applicant was entitled to enfranchise the main house but subject to the freehold owners' right to serve a section 2(5) notice.

(WLR)

REVENUE

Landfill tax - recycled material used for road making and landscape purposes on landfill site - no liability to landfill tax

Customs and Excise Commissioners v Parkwood Landfill Ltd: CA (Lords Justice Aldous and Jonathan Parker and Mr Justice Aikens): 28 November 2002

The taxpayers bought recycled material to use for road making and landscaping purposes at the landfill site which they operated.

Customs raised an assessment to landfill tax in respect of that material.

The VAT and duties tribunal held that the recycled material was not liable to landfill tax.

Sir Andrew Morritt, the Vice-Chancellor, allowed an appeal by customs.

The taxpayers appealed.

David Milne QC and Richard Barlow (instructed by Nabarro Nathanson) for the taxpayers; Philip Havers QC and Philippa Whipple (instructed by the Solicitor, Customs and Excise) for customs.

Held, allowing the appeal, that the 1996 Act had to be construed against the background of its purpose, which was to promote recycling and to reduce the amount of waste going to landfill; that to tax recycled material used for road making and the like at landfill sites was contrary to that purpose; that the tax was a landfill tax, not a landfill and recycling tax; and that the tax was to be paid when waste material was disposed of by way of landfill in a landfill site and not on waste material which had already been recycled and might be used in a landfill site.

(WLR)