Law reports

CRIMINAL

Sentencing - confiscation proceedings - effect of non-compliance with procedural requirements

R v Sekhon; R v Singh (Shangara); R v Singh (Satnam); R v Dhnoay; R v Knights; R v Maguire (Kevin); R v McFaul: CA (Lord Woolf Chief Justice, Mr Justice Holland and Mr Justice Keith): 16 December 2002

The defendants in three separate cases were convicted of criminal offences and confiscation orders were made pursuant to either section 71 of the Criminal Justice Act 1988, as amended by sections 27-35 of the Criminal Justice Act 1993 and sections 1-10 of the Proceeds of Crime Act 1995, or sections 2 and 3 of the Drug Trafficking Act 1994.

The defendants appealed against the confiscation orders on the grounds that the confiscation proceedings had not taken place in accordance with the statutory procedures, particularly those relating to postponement of the proceedings until after sentencing.

Balbir Singh for Sekhon; Avtar Bhatoa (solicitor-advocate) for Shangara Singh; Robert Rhodes QC and Simon Taylor for Satnam Singh and Sunit Sandhu for Dhnoay (all assigned by the Registrar of Criminal Appeals); David Perry and John Muir (instructed by the Solicitor, Customs and Excise) for the Crown; Christopher Campbell-Clyne for Knights and Joseph Boothby for Maguire (both assigned by the Registrar of Criminal Appeals); Michael Brompton (instructed by the Solicitor, Customs and Excise) for the Crown; Jason Smith (instructed by Brian Jackson & Co, Liverpool) for McFaul.

Held, dismissing the appeals of the fifth and sixth defendants but quashing the other orders, that procedural defects of a technical nature which caused no injustice to the defendant did not deprive the court of jurisdiction in relation to the making of confiscation orders; that a procedural failure should only result in a lack of jurisdiction if that were necessary to ensure that the criminal justice system served the interests of justice, and thus the public, or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure; that defaults by the judge in relation to procedural requirements could be satisfactorily dealt with on appeal when the court would determine what justice required, having regard to the parliamentary code and taking into account the Draconian nature of the proceedings; and that all that was strictly required in order to give the court jurisdiction where a postponement of confiscation proceedings was necessary was that there should be a decision to postpone (WLR).

HOUSING

Housing allocation scheme preferring current need - allegation that scheme unlawful - no grounds for declaration of unlawfulness

Ibrahim v Redbridge London Borough: ChD (Mr Justice Lightman): 17 December 2002

The defendant local authority was responsible for securing suitable accommodation for the claimant, who was homeless.

It did this for seven years by moving her and her children between suitable temporary accommodation and unsuitable accommodation under its housing allocation scheme based on current, as opposed to historic past, need.

Every time the claimant was placed in suitable temporary accommodation, her need for accommodation was deemed to be not as pressing as that of people in unsuitable accommodation, so that she never obtained permanent suitable accommodation.

The claimant sought a declaration that the defendant's policy was unlawful.

Robert Latham (JC Gorringe & Co); Josephine Henderson (Heidi Chottin, Redbridge Legal Services).

Held, refusing to make the declaration sought, that it had to be recognised that the defendant was responsible for allocation of the scarce housing available to it in the face of overwhelming demand; that the political decision as to choices reflected in its housing scheme was one for the defendant; that the housing allocation scheme reflected the emphasis on current need in section 167(2) of the Housing Act 1996; that the emphasis on current need was entirely rational and although it might operate to the serious disadvantage of those with legitimate expectations of permanent accommodation and result in the 'yo-yo' effect as it had done in the claimant's case, it was not unlawful.

MENTAL HEALTH

Compulsory detention in hospital - panel of three members hearing review of claimant's detention - power to order discharge not exercisable unless at least three members of panel in favour

R (Tagoe-Thompson) v Central and North West London Mental Health NHS Trust: QBD (Mr Justice Forbes): 9 December 2002

The claimant was detained under section 3 of the Mental Health Act 1983, in a hospital run by the defendant.

The claimant's request for a review of his detention was heard by a panel of three members appointed by the managers of the hospital.

Despite a majority of two to one in favour of discharging the claimant, the panel decided not to discharge him under section 23(4) of the 1983 Act, as amended by section 66(1) of and paragraph 24(3) of schedule 9 to the National Health Service and Community Care Act 1990.

The claimant sought judicial review and a writ of habeas corpus, on the ground that the majority decision should have resulted in the claimant's discharge.

Roger Pezzani (instructed by Inyama & Co) for the claimant; Tom Weisselberg (instructed by RadcliffesLeBrasseur) for the trust.

Held, granting judicial review, that before the power conferred on the panel to make an order under section 23(4) of the 1983 Act could be exercised, there had to be three or more members in favour of that course; and that, since only two members of the panel were in favour of discharge, the power to order discharge could not be exercised.

(WLR)

Compulsory treatment - treatment to be convincingly shown to be medically necessary and in patient's best interest - standard of proof

R (N) v Dr M and Others: [2002] EWCA Civ 1789: CA (Lord Phillips of Worth Matravers MR, Lords Justice Rix and Dyson): 6 December 2002

The claimant, an allegedly mentally ill patient, was presented by her responsible medical officer with a treatment plan which included administering by injection anti-psychotic medicine to treat her psychotic illness.

The claimant refused her consent to that treatment.

Another consultant psychiatrist issued a certificate under section 58(3)(b) of the Mental Health Act 1983 stating that the claimant was suffering from paranoid psychosis/severe personality disorder and required regular anti-psychotic treatment.

The claimant sought judicial review of those decisions, relying on advice from an independent psychiatrist that she was very unlikely to be suffering from a psychotic illness, should not be given anti-psychotic medication, and retained the capacity to decide treatment.

The judge refused judicial review.

The claimant appealed.

Matthias Kelly QC and Kris Gledhill (instructed by David Turner & Co) for the claimant; Philip Havers QC and Jeremy Hyam (instructed by Capsticks) for the first and second defendants; Elisabeth Laing (instructed by the Treasury Solicitor) for the third defendant.

Held, dismissing the appeal, that before the court could give permission for treatment to which the patient did not consent, medical necessity had to be convincingly shown; that the standard was high but not the same as the criminal standard of proof and the only question was whether the proposed treatment had been convincingly shown to be medically necessary; that a responsible body of medical opinion against the treatment was relevant but not decisive; that the court had to decide in the light of all the evidence whether the proposed treatment was in the patient's best interests and medically necessary within article 3 of the European Convention on Human Rights.

(WLR)

PRACTICE

Inordinate and inexcusable delay - fair trial still possible - proceedings not struck out

In re McHugh Southern Ltd (in liquidation): ChD (Mr David Donaldson QC sitting as a deputy High Court judge): 12 December 2002

A company went into voluntary liquidation.

On the last possible day permitted under the relevant six-year limitation period, the liquidator of the company commenced proceedings against the company's then sole director for wrongful trading, claiming a contribution toward the assets of the company in the sum of 198,643.

The director applied to the county court for the claim to be struck out on the basis that the liquidator's inordinate and inexcusable delay had infringed his right, under article 6(1) of the European Convention on Human Rights, to a fair trial within a reasonable time.

The recorder in the county court dismissed the application.

The director appealed.

Susan Brown (instructed by Bosley & Co, Brighton) for the director; Steven Thompson (instructed by ASB Law, Brighton) for the liquidator.

Held, dismissing the appeal, that excessive delay could infringe a defendant's rights under article 6(1) to the extent that proceedings would have to be struck out as an abuse of the process of the court; that that would largely turn on whether it was still possible for the defendant to receive a fair trial, and where a fair hearing was still possible the court would normally decline to strike out the claim but would impose some other penalty in respect of the delay; that the recorder's conclusion, having considered all the relevant issues including the case law, that the matter could still be fairly tried was a reasonable exercise of his discretion which could not be reversed on appeal; and that had the court heard the application below it would have taken the same view.

REVENUE

Customs and excise - goods imported from European Union in excess of permitted quantities for personal use - seizures upheld even though search quashed

R (Hoverspeed Ltd and others) v Customs and Excise Commissioners [2002] EWCA Civ 1804: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Mance and Latham): 10 December 2002

The second to fourth claimants, returning from France on the first claimant's ferry, were stopped by customs officers who searched their car.

All the goods and the car were seized because amounts of alcohol and tobacco in excess of the permitted quantities for personal use were found.

The claimants brought judicial review proceedings challenging, among other things, the lawfulness of the customs checks and seizures made.

The Queen's Bench Divisional Court [2002] 3 WLR 1219 declared that the Excise Duty (Personal Reliefs) Order 1992, containing the minimum indicative levels of dutiable goods for commercial use, was incompatible with Council Directive 92/12/EEC and article 28 of the EC Treaty and quashed their decisions to check the individual claimants and their car and to seize the goods and the car.

Customs appealed against the quashing orders.

Gerald Barling QC, David Anderson QC and Andrew Bird (instructed by the Solicitor, Customs and Excise) for customs; Rabinder Singh QC and Jessica Simor (instructed by Richards Butler) for the claimants.

Held, allowing the appeal in part, that the commissioners could use information from profiles and trends to establish reasonable grounds to suspect that a person in the UK had with him any alcohol or tobacco chargeable with unpaid excise duty, so as to entitle them to search under sections 163 and 163A of the Customs and Management Act 1979 (as amended); that, although the decision to quash the checks was correct since customs had given no reason for making them, the seizures were not axiomatically invalid and, there being no reason to quash the seizures on other grounds, the decision to quash the seizures could not be upheld.

(WLR)

TORT

Negligence - amateur rugby player injured during rugby match - amateur referee owing duty of care to player

Vowles v Evans and others: QBD (Mr Justice Morland): 13 December 2002

The claimant, playing as hooker for an amateur rugby team, was injured during a match, resulting in permanent tetraplegia, and was wheelchair bound.

The claimant brought an action in negligence against, among others, the amateur referee of the match, Welsh Rugby Union Ltd, which accepted vicarious liability for any negligence of the referee, and the chairman and the honorary secretary of the rugby football club.

Ian Murphy QC and Jonathan Bellamy (instructed by J Peter Davies & Partners, Cardiff) for the claimant; John Leighton Williams QC and Gregory Treverton-Jones (instructed by Morgan Cole, Swansea) for the referee and the company; Wyn Williams QC and Christian DuCann (instructed by Hugh James Ford Simey, Cardiff) for the club officers.

Held, giving judgment for the claimant against the referee and the company but dismissing the claims against the club officers, that the rapport between referee and players was crucial to a good game of rugby and that there was no reason why that rapport would be lessened because referee and players knew that the referee owed a duty of care for the safety of the players; that in so far as the referee could stop the risk of injury becoming a reality by appropriate application of the laws it would not be unreasonable to expect him to do so; and that, accordingly, as a matter of policy it was just and reasonable that the law should impose upon an amateur referee of an amateur rugby match a duty of care towards the safety of the players which would be breached where the referee failed to take reasonable care for the safety of the players by sensible and appropriate application of the laws of rugby, having regard to the context and circumstances of the game.

(WLR)