Law reports

Law reports

CRIMINAL

Trial before lay justices - justices advised on law by legally qualified clerk in private - no breach of convention right to fair and public hearing by independent and impartial tribunal

Clark (Procurator Fiscal, Kirkcaldy) v Kelly [2003] UKPC D1: PC (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry): 11 February 2003

The minuter was charged on summary complaint in a district court in Scotland, where he would be tried by a lay justice who would be advised in private on law, practice and procedure by a legally qualified clerk.

The lay justice was not bound to follow that advice, and was the sole factual and legal decision-maker.

Before trial, the minuter raised a devolution issue, contending that such a trial would inevitably infringe his right under article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms to a fair and public hearing by an independent and impartial tribunal because legal decisions were effectively taken by the clerk, who as an employee lacked the security of tenure necessary to ensure independence, and the giving of advice in private breached the guarantee of a 'public hearing.' The district court referred the issue to the High Court of Justiciary, which referred in on to the Privy Council.

Colin MacAulay QC and Jonathan Lake (both of the Scots bar) (instructed by the Crown Agent) for the Crown; Branislav Sudjic and Ann Ogg, solicitors (instructed by Brodies WS, Edinburgh for McKennas, Glenrothes) for the minuter.

Held, that the clerk's role attracted some requirements of independence in order for the trial to be fair; that the clerk was detached from the decision made by the court and was sufficiently independent to enable the procedure to satisfy the requirements of article 6(1); that the clerk's advice on the law could be corrected on appeal if wrong; that there was nothing objectionable in the practice of private communications between the clerk as legal assessor and the justice, provided care was taken to confine them to the provision of legal advice and to recognise and raise in open court any matter on which the parties might reasonably wish to comment; that any such advice should be regarded as provisional until its substance had been repeated in open court and an opportunity given to the parties to comment on it; and that the clerk should then state in open court whether the advice was confirmed or in what respect it was varied before the justice acted on it.

(WLR)

EMPLOYMENT

Teachers refusing to obey direction to teach allegedly disruptive pupil - refusal was dispute about terms and conditions of employment - union's failure to ballot all members entitled to vote not fatal to ballot's validity

P (A Minor) v National Association of School Masters/Union of Women Teachers: HL (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Walker of Gesting-thorpe): 27 February 2003

Following teachers' refusal to comply with the head teacher's direction to teach the claimant, an allegedly disruptive pupil, in class, their union balloted all but two of its members who were entitled to vote on proposed industrial action.

The omission was accidental and immaterial to the result, which supported action.

Thereafter, the claimant was taught on his own.

He claimed injunctive relief against the union, contending that since it had failed to accord two members entitlement to vote sections 227(1) and 232A of the Trade Union and Labour Relations (Consolidation) Act 1992 were not satisfied and the action was unlawful.

Mr Justice Morison concluded that the dispute was a 'trade dispute' within section 244 (1) and that, since the omission in the balloting procedure either fell within section 230(2) or was to be disregarded under section 232B, the ballot was valid.

The Court of Appeal [2001] ICR 1241 dismissed the claimant's appeal.

The claimant appealed.

Nigel Giffin (instructed by Ashok Patel & Co) for the claimant; David Bean QC and Thomas Linden (instructed by Russell Jones & Walker) for the union.

Held, dismissing the appeal, that the dispute plainly fell within the teachers' terms and conditions of employment under section 244(1); that section 227(1) defined the constituency who had to be accorded entitlement to vote as all members whom it was reasonable to believe would be induced to participate in the proposed action, and no others; that, where the provisions relating to the conduct of the ballot had been complied with in respect of that constituency, its members were accorded entitlement to vote; that, since ballot papers might, by section 230(2), be distributed so far as was reasonably practicable, and since section 232B permitted sections 227(1) and 230(2) to be subject to the disregard of small accidental errors, the union's omission had not denied any entitlement to vote under section 232A and the ballot was valid.

National minimum wage - carer on call for 72-hour period living with charge - daily average hours of active caring less than seven - engaged in 'unmeasured work' rather than 'time work'

Walton v Independent Living Organisation: CA (Lord Justice Aldous, Lady Justice Arden and Mr Justice Jacob): 26 February 2003

The employer provided carers for people who, because of their age or disability, needed assistance to maintain their independence and remain in their own homes.

The employee was a carer allocated to a client who suffered from epilepsy and had fits on a regular basis.

She was a relatively easy client who needed a minimum of supervision.

The employee was responsible for her washing, ironing, shopping, preparation of meals and medication.

She spent most of her time watching television and doing jigsaws.

She usually retired between 9.30pm and 10pm and slept through the night.

Thus the employee was very rarely disturbed during the night.

The employee worked three days on, four days off.

She was paid 31.40 per day and she accepted that the time spent on carrying out tasks for her charge were less than seven hours a day.

Her claim that she was not paid the national minimum wage was unsuccessful at the employment tribunal and at the Employment Appeal Tribunal.

She appealed to the Court of Appeal.

Robin Allen QC and Paul Epstein (instructed by Leo Abse & Cohen, Cardiff) for the employee.

Andrew Hillier QC and Andrew Blake (instructed by Eversheds, Norwich) for the employer.

Held, dismissing the appeal, that regulation 3(a) of the National Minimum Wage Regulations 1999 (SI 1999 No 584) contemplated that a worker could be paid by reference to something other than time even though payment could be made per day or per month, and such payment was not within regulation 3(a); that on the assumption that the work carried out by the employee caring for her charge took place over a period of 24 hours the question whether the payment was made to her by reference to the time that she worked or by reference to other matters depended on the facts and was a decision for the tribunal to make; and that there was an evidential basis for the tribunal's decision that the employee was not paid by reference to the time for which she worked, and it would not be right for the Court of Appeal to reject that finding.

IMMIGRATION

Interview process for asylum-seekers - secretary of state's policy not to allow tape recording of interview - policy justified in pursuit of fair and speedy service and procedure not offending objective considerations of fairness

R (Mapah) v Secretary of State for the Home Department: QBD (Mr Justice Pitchford): 25 February 2003

The claimant, a Cameroon national, applied to the secretary of state for asylum.

He was required to attend for interview.

His solicitors' request for permission to make a tape recording of the interview was refused as not being allowed under current Home Office policy.

The claimant sought judicial review of that policy, and of the decision to refuse permission to him in particular.

Edward Fitzgerald QC and Shahram Taghavi (instructed by Anthony Louca Solicitors) for the claimant; Gerard Clarke (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the claim, that the secretary of state enjoyed the prerogative to control the interview process to the best advantage of the system of immigration control and asylum in general, and sufficient safeguards existed so that the procedure in place did not offend objective considerations of fairness; that consent to one request was tantamount to consent to all, and it was unreasonable to expect the secretary of state to subject the procedure for information gathering to a satellite industry, arising from amateur recording of challenges, producing delay, expense and inconvenience; that in the event of a disputed recording, the secretary of state might be required to employ his own interpreter and transcriber to examine what were alleged to be mistakes in translation; and that the majority of such challenges were likely to be insubstantial and of marginal impact in the context of an asylum application as a whole and would serve to undermine the objective of a fair and speedy service.

MEDICAL TREATMENT

Children conceived through IVF treatment using wrong sperm - error resulting in husband of genetic mother not being genetic father - legal paternity not conferred on husband

Leeds Teaching Hospitals NHS Trust v A and others [2003] EWHC 259 (QB): QBD (Dame Elizabeth Butler-Sloss, President): 26 February 2003

In the course of IVF treatment of A and his wife, B's sperm was erroneously used to fertilise A's wife's eggs.

The embryos were then implanted in A's wife, resulting in the birth of twins.

B applied for a declaration of paternity under section 55A of the Family Law Act 1986 on the basis that he was the genetic father of the twins.

Robert Francis QC (instructed by Hempsons) for the NHS trust; Eleanor Hamilton QC and Elizabeth O'Hare (instructed by Lee & Priestley, Leeds) for A and his wife; Peter Jackson QC (instructed by the Official Solicitor) for the twins; Dinah Rose (instructed by Morgan Cole, Cardiff) for the Human Fertilisation and Embryo Authority; Judith Parker QC and Charles Foster (instructed by Lester Morrill, Leeds) for B and his wife; James Eadie (instructed by Solicitor to the Department for Work and Pensions and the Department of Health) for the Department of Health as intervener; Neil Garnham QC (instructed by the Treasury Solicitor) as advocate to the court.

Held, adjourning the application, that section 28 of the Human Embryology and Fertilisation Act 1990 did not confer legal paternity on A since he had not consented to the placing in his wife of the actual embryos which had been placed in her, and a fundamental error resulting in the use of another's sperm in place of sperm of the man taking part in the treatment vitiated the whole concept of 'treatment together'; and that, although that constituted an interference with the rights of A and his wife under article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, it was not necessary to consider the question of incompatibility since the interference was in accordance with the law, could properly be cured by the legal remedies available within domestic family legislation and was necessary and proportionate in aiming to provide the necessary protection of the rights of the twins whose welfare had to predominate.

POLICE

Power of arrest and release - 'offence' - not extending to breach of peace

Williamson v Chief Constable of West Midlands Police; CA (Lords Justices Mummery and Dyson); 21 February 2003

The claimant was arrested for breach of peace and remanded in police custody.

Although after two hours the police thought that he was no longer likely to cause a breach of the peace, they kept him in custody for two nights on the basis that they had no power to release him without bringing him before justices.

In a claim against the Chief Constable for damages for false imprisonment, the judge awarded the claimant 1,250 on the basis that he should have been released as soon as it was realised that there was no longer a risk of breach of the peace.

The judge gave permission to the Chief Constable to appeal on the question of whether 'offence' in the Police and Criminal Evidence Act 1984 applied to breach of the peace.

The Chief Constable appealed.

Ramby de Mello and Christopher Williams (instructed by Mian & Co, Birmingham) for the claimant; Adreeja Chatterjee (instructed by the Solicitor, West Midlands Police Force) for the Chief Constable.

Held, dismissing the appeal, that 'offence' in the 1984 Act did not apply to a breach of the peace, which was adequately governed under the common law; that legal proceedings for a breach of the peace would only result in a bind over, which would not be a conviction; and that it should be assumed that Parliament weighed the policy considerations and concluded that it was unnecessary to extend the 1984 Act to cases of breach of peace.

REVENUE

VAT - goods assessed at standard rate - failure to pay VAT resulting in charge to interest - goods later zero-rated - interest still payable

Commrs of Customs & Excise v Mushashi Autoparts Europe Ltd (formerly TAP Manufacturing Ltd): ChD (Lightman J): 26 February 2003

The respondent supplied goods to a person in another EU member state.

He was therefore entitled to zero-rate the supply of goods for the purposes of VAT provided that he supplied documentary evidence to prove that the goods had been so supplied within three months of the date of supply.

The respondent failed to do so and the supply was assessed on the standard basis and interest was levied on the assessment.

The respondent subsequently supplied the relevant documents and so was entitled to record the supply of goods as zero-rated.

The commissioners held that the interest levied on the original assessment remained payable.

The VAT and duties tribunal upheld the respondent's appeal.

The commissioners appealed.

Kieron Beal (Solicitor for the Commissioners of Customs & Excise) for the commissioners; Rupert Baldry (KLegal) for the respondents.

Held, allowing the appeal, that the goods were not retrospectively zero-rated, and the legal consequences of the initial standard rating applied so that interest became and continued to be payable in respect of the supply; that that was evident in the scheme of the legislation under which satisfaction of the conditions for zero-rating after the three-month period merely entitled the taxable person as at the date of such satisfaction to a credit for the VAT liability previously assessed, and satisfaction of the conditions for zero-rating did not give rise to a separate credit in respect of the liability for accrued interest; and that, accordingly, the commissioners were entitled to recover the interest due under the initial assessment.

SOCIAL SECURITY

Disability allowance - income support with severe disability premium for fixed period - severe disability allowance continuing to be paid after expiry of term - applicant not guilty of non-disclosure

Hinchy v Secretary of State for Work and Pensions: CA (Lords Justice Aldous and Carnwath and Sir Denis Henry): 20 February 2003

The applicant received income support which included a severe disability premium.

The premium was payable because she was categorised as severely disabled and was in receipt of an award of the care component of disability allowance at the middle rate.

That award was for a fixed period which expired in October 1998 and, despite an appea,l was not renewed.

The result should have been that her income support payment no longer included a severe disability premium.

However, payment of severe disability premium continued until July 2000, resulting in an overpayment of 3,550, which the secretary of state sought to recover.

The Benefits Agency ruled that the applicant was liable to make repayment.

An appeal tribunal dismissed her appeal.

She then appealed to the commissioners, who dismissed her appeal but gave her leave to appeal to the Court of Appeal.

John Howell QC (instructed by Stewart Wright, Islington) for the applicant.

Richard Drabble QC (instructed by the Solicitor, Department of Work and Pensions) for the secretary of state.

Held, allowing the appeal, that a reasonable secretary of state would put in place, and would be expected to put in place, a system to enable the decision makers in the disability living allowance office to provide the decision makers in the income support office with knowledge of the material facts; that the applicant knew that the information as to her disability allowance was within the knowledge of the secretary of state acting through the decision makers in the disability living allowance office; that it was reasonable to believe that that knowledge would reach the secretary of state acting through his decision makers in the relevant income support office; and that, accordingly, there was no need for the applicant to have given information to the decision makers in the income support office and disclosure to or knowledge of the decision makers in the disability allowance office was sufficient.

TORT

Occupiers' liability - adult trespasser diving into harbour at midnight in midwinter injured by hidden underwater obstruction - harbour owners owing no duty to trespasser

Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justices Brooke and Laws): 27 February 2003

In midwinter after midnight, the claimant, a professional diver, went for a swim in a tidal harbour.

He dived into the sea from a slipway, struck his head on an underwater obstruction, broke his neck and was rendered tetraplegic.

He brought an action against the defendant harbour owner under the Occupiers' Liability Act 1984 claiming damages for breach of duty.

The judge gave judgment for the claimant but made a finding of 75% contributory negligence.

The defendant appealed.

Lawrence West (instructed by Eversheds, Cardiff) for the defendant; William Braithwaite QC and Alan Saggerson (instructed by Cunningham-John, Thetford) for the claimant.

Held, allowing the appeal, that the 1984 Act imposed a duty on an occupier where the state of the premises posed a danger which risked causing injury to a trespasser if he came within the vicinity of it and there were reasonable grounds for believing that the trespasser was or might come within its vicinity and in all the circumstances it was reasonable to afford the trespasser some protection against the risk; that whether such a duty of care arose was to be determined having regard to the circumstances at the time of the alleged breach of duty resulting in injury to the claimant; and that, although trespassers were known to swim in the harbour in summer, since the defendant had no reasonable grounds to believe that a trespasser would come into the vicinity of the danger within section 1(3)(b) of the Act in the circumstances in which he did, the defendant owed him no duty under the Act.

(WLR)

TAXATION

Inheritance tax - deceased majority shareholder in company owning and operating caravan site - business property exemption not applicable on transfer of shareholding

Inland Revenue Commissioners v George and another [2003] EWHC 318 (Ch): ChD (Laddie J): 27 February 2003

The taxpayers were the executors of the will of the majority shareholder in a company which owned land on which it ran, and provided services for, a caravan/mobile homes site.

The company received site fees from the owners of caravans and charged them for the supply of services.

It employed a manager and also ran a country club and caravan storage business on its land.

The taxpayers' claim for exemption from inheritance tax on the transfer of the shareholding was upheld by a special commissioner on the ground that the exemption for 'relevant business property' given by sections 104(1) and 105(1) of the Inheritance Tax Act 1984 applied.

The revenue appealed.

Hugh McKay (instructed by the Solicitor of Inland Revenue) for the Crown; G R A Argles (instructed by Birkett Long, Colchester) for the taxpayers.

Held, allowing the appeal, that section 105(3) of the 1984 Act excluded from the exemption a business, or shares in a company carrying on a business, consisting wholly or mainly of making or holding investments; that that exclusion applied not only to the holding of land but to activities which, viewed through the eyes of the average businessman, were incidental to that core activity; that receipt by the company of site fees constituted exploitation of the land and its ancillary activities were to be regarded as incidental to it; and that, accordingly, section 105(3) applied, taking the shareholding out of the exemption for relevant business property.