Law reports

CRIMINAL

Sexual offences - rape and indecent assault - permissible and not unfair to ask defendant in cross-examination whether able to explain why complainants should be lying

R v Brook: CA (Lord Justice Rose, Mr Justice Gross and Mr Justice Pitchers): 12 March 2003

At the start of the defendant's trial on an indictment charging counts of rape, attempted rape and indecent assault, prosecuting counsel sought and obtained permission to ask the defendant in cross-examination whether he was able to think of any reason why the complainants should be lying.

Following conviction, the defendant appealed on the grounds, among other things, that it was unfair, or tantamount to shifting the burden of proof, for the prosecution to have been permitted to ask him that question.

Robert Smith QC (assigned by the Registrar of Criminal Appeals) and Christopher Tehrani (appearing pro bono) for the defendant; Adrian Waterman and Martina Connolly (instructed by the Crown Prosecution Service, Leeds) for the Crown.

Held, dismissing the appeal, that the question being scrutinised was one which had been widely, if not invariably, put in such cases for at least 40 years without any recorded expression of disapproval from the courts; that the question put at trial was not unfair and did not shift the burden of proof; and that it was an admissible question because it was relevant since, if something were known to the defendant which provided a reason for a complainant to lie, that would tend to undermine that complainant's credibility, and if a defendant unexpectedly gave a positive answer that might be relevant to his own credibility.

DISCRIMINATION

Racial discrimination - compensation - compensation recoverable for losses directly caused by discriminating act, whether or not reasonably foreseeable

Essa v Laing Ltd: EAT (Judge Serota QC, Mr BR Gibbs, Mrs M McArthur): 27 February 2003

The employer's foreman made a racially abusive comment about the employee, a Welshman of Somali ethnicity, which caused him immense distress.

Although the abuse was a one-off incident, the employee left the job and, subsequently, suffered severe depression, lost interest in finding other work and fell into debt.

An employment tribunal, having found racial discrimination, awarded the employee 5,000 in compensation for injury to his feelings, plus a small amount for financial loss.

The employee appealed on the ground that the tribunal had erred in awarding compensation only in respect of reasonably foreseeable losses.

Sarah Moor (instructed by Race Equality First, Cardiff) for the employee; John Bryant (instructed by Hawkins Russell Jones, Hitchin) for the employer.

Held, allowing the appeal, that the statutory tort created by section 54 of the Race Relations Act 1976, under which complaints of unlawful racial discrimination were to be presented to an employment tribunal, was designed to protect persons from all kinds of discrimination on the ground of race and any consequent injury, including personal injury such as psychiatric damage; that, accordingly, the tribunal had applied the wrong test since it was sufficient that a victim of racial discrimination proved a causal link between the discriminating act and the harm being compensated, whether or not that harm was foreseeable; and that the case would be remitted to the employment tribunal to reconsider the question of compensation having regard to such findings as they might make and to what extent the employee's psychological injury was a direct cause of the racial abuse suffered.

EDUCATION

Direction to 'reinstate' permanently excluded pupil - pupil taught at school but segregated from community life following teachers' threat of industrial action - pupil validly 'reinstated' in accordance with direction

R (L (A Minor)) v Governors of J School: HL (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Walker of Gestingthorpe): 27 February 2003

The head teacher was directed by an appeal panel, under section 67 of the School Standards and Framework Act 1998, to reinstate the claimant, a pupil whom he had permanently excluded following an incident at the school.

Since the teachers threatened industrial action if the claimant were returned to class, the head teacher arranged for the claimant to be segregated from all aspects of school life, and he was taught and supervised at school by a teacher engaged for that purpose.

The claimant sought judicial review of the head teacher's decision, as being a failure to 'reinstate' him.

Mr Justice Henriques dismissed the claim.

The Court of Appeal [2001] LGR 561 affirmed the judge's order.

The claimant appealed.

Cherie Booth QC, Nicholas Bowen and Conor Gearty (instructed by Teacher Stern Selby) for the claimant; James Goudie QC and Jane Oldham (instructed by Winckworth Sherwood) for the school governors.

Held, dismissing the appeal (Lord Bingham of Cornhill and Lord Hoffmann dissenting), that 'reinstate' in section 67 connoted the restoration of the legal relationship between the pupil and the school community and the resumption of a status which carried with it statutory and common law obligations owed by the school to all its pupils; that the panel's jurisdiction under section 67 was confined to whether the pupil should be reinstated and it was for the head teacher and the governors to make appropriate arrangements, having regard to countervailing duties to staff and other pupils, as to the manner in which reinstatement was managed; and that, given the teachers' threat of lawful industrial action, the regime imposed on the claimant was not unlawful.

(WLR)

HUMAN RIGHTS

Right to peaceful enjoyment of possessions - rule providing for prisoner's cash to be paid into account under control of governor and credited to prisoner in prison books - neither creating trustee/beneficiary relationship between prisoner and governor nor incompatible with convention rights

Duggan v Governor of Full Sutton Prison and another [2003] EWHC 361 (Ch): ChD (Mr Justice Hart): 28 February 2003

Money which a prisoner had on him on arrival at the prison, as well as money subsequently sent to him and earned by him in prison, was handed to the prison governor in accordance with the Prison Rules 1999, rule 43(3) of which required any cash to be paid into an account under the control of the governor, and the prisoner to be credited with the amount in the books of the prison.

Contending that his money was held by the governor or the Home Office on trust and that, in the meantime, it should be invested in an interest-bearing account, the prisoner brought a claim against them for accounts in respect of such interest.

The prisoner contended that the court had a duty to read and give effect to the 1999 Rules in a way compatible with the right to peaceful enjoyment of possessions as protected by article 1 of the First Protocol to the European Convention on Human Rights.

Leigh Sagar (instructed by AS Law, Liverpool) for the prisoner; Steven Kovats (instructed by the Treasury Solicitor) for the defendants.

Held, dismissing the claim, that, when considering the nature of the prisoner's money as against the right protected by article 1 of the First Protocol, the relevant possession was not the 'money' in the abstract but the 'cash' which the prisoner had at prison; that since the prisoner did not lose all rights to be reimbursed for any cash removed from him, the rule was not incompatible with his convention rights; that, moreover, there was no rule which prevented the prisoner himself from arranging for his money to be transferred to an interest-bearing account outside the prison; that the purpose of rule 43(3) was not to impose a trust with a concomitant obligation to invest, since the cash simply had to be 'paid' into an account; and that, accordingly, the rule created a relationship of debtor and creditor, not of trustee and beneficiary.

IMMIGRATION

Asylum - Kurds refusing to perform compulsory military service in Turkish army on conscientious grounds - not entitled to refugee status

Sepet and another v Secretary of State for the Home Department [2003] UKHL 15: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry): 20 March 2003

The applicants, who were Kurds and Turkish nationals, refused to perform compulsory military service in Turkey because they objected to the policies of the then Turkish government towards the Kurdish people and feared that they might, while serving in the armed forces, be required to take part in military action against fellow Kurds.

Their refusal to serve made them liable to imprisonment.

They claimed asylum in the UK.

The secretary of state's decision that they were not refugees under article 1A(2) of the Convention and Protocol relating to the Status of Refugees (1951) (Cmnd 9171) and (1967) (Cmnd 3906) was upheld by the special adjudicator, the Immigration Appeal Tribunal and the Court of Appeal.

The applicants appealed.

Andrew Nicol QC and Rick Scannell (instructed by Deighton Guedalla) for the first applicant; Andrew Nicol QC and Nadine Finch (instructed by Birnberg Peirce & Partners) for the second applicant; John Howell QC and Mark Shaw QC (instructed by the Treasury Solicitor) for the secretary of state; Nicholas Blake QC and Tim Eicke (instructed by Wesley Gryk) for the United Nations High Commissioner for Refugees.

Held, dismissing the appeals, that, while refugee status should be accorded to a person who had refused to undertake compulsory military service on the grounds that it would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment, the applicants could not, on the facts, bring themselves within any of those categories; that the leading human rights conventions treated compulsory military service as an exception from the prohibition against forced labour, and international opinion since their adoption had not, as yet, reached a clear consensus recognising a right to refuse to undertake military service on grounds of conscience; that the applicants were therefore not entitled to refugee status under article 1A of the convention on the grounds of conscientious objection to military service; that in deciding whether an asylum applicant had been or would be persecuted for a reason under article 1A, the real reason for the persecution operating in the mind of the persecutor had to be assessed; that a victim's belief that treatment was inflicted on him for a particular reason was beside the point if that was not the real reason; and that it was not tenable that the applicants were being persecuted for their political opinions, since it was clear that anyone refusing to perform military service would be treated in the same way whatever his personal grounds for doing so.

(WLR)

Application for asylum granted - six-month delay in issuing refugee status letter delaying family's reunion - delay unlawful but no breach of convention right to respect for private and family life

R (Mambakasa) v Secretary of State for the Home Department [2003] EWHC 319 (Admin): QBD (Mr Justice Richards): 3 March 2003

The claimant arrived in the UK from Angola and sought asylum.

The secretary of state refused the claim but the Immigration Appeal Tribunal allowed the claimant's appeal.

Due to a backlog of cases to be processed and a catalogue of errors by the secretary of state's staff, there was then a delay of more than six months before the letter formally conferring refugee status was issued.

As a result, the claimant's health and benefit entitlements were affected, and his family, who remained in Angola, were unable to apply for entry clearance to join him in the UK until the letter was issued.

The claimant sought judicial review by way of damages for breach of his rights under article 8 of the European Convention on Human Rights.

Andrew Nicol QC and Duran Seddon (instructed by Hackney Community Law Centre) for the claimant; Steven Kovats and Jason Coppel (instructed by the Treasury Solicitor) for the secretary of state.

Held, dismissing the claim, that the secretary of state's delay in granting the claimant refugee status, to which he was entitled as a result of the tribunal's decision, was unreasonable and amounted in domestic law to a breach of duty which did not sound in damages; that, in all the circumstances, there had been no breach of article 8 rights; and that, had there been a breach of article 8, the claimant would have been entitled to damages in the region of 1,000 to 2,000.

INTERNATIONAL

Proper law of contract - global transportation insurance contract covering group of companies incorporated in different jurisdictions - not severable so as to be governed by laws of different jurisdictions

American Motorists Insurance Co (Amico) v Cellstar Corpn and another: CA (Lords Justice Kennedy, Mantell and Mance): 4 March 2003

The claimant insurance company, incorporated in Texas, concluded a global transportation insurance contract with the first defendant, a company incorporated in Texas, to cover its business and that of its group of companies incorporated in Europe.

The claimant commenced proceedings in England against the first defendant and the second defendant, an English company belonging to the group, to avoid the global transportation insurance policy issued in Texas.

The judge set aside the service on the first defendant and stayed the proceedings against the second defendant on the ground that the contract was not governed by English law.

The claimant appealed on the ground that the risks covered extended to companies in several countries and therefore the contract was severable so as to be governed by the law of the country where a particular company was situated.

Michael McParland (instructed by Waltons & Morse) for the claimant; Karen Troy-Davies (instructed by Addleshaw Booth & Co, Manchester) for the defendants.

Held, dismissing the appeal, that the contract had significant composite elements and could not be regarded as severable into a series of contracts applying to individual companies in the group in order to invoke the law of the country where each was incorporated as the governing law of the contract; that where a contract failed to express its governing law, the Insurance Companies Act 1982 and conventions and protocol scheduled in the Contract (Applicable Law) Act 1990 provided alternative schemes, either of which could be invoked by the English court to ascertain the implied intention of the contracting parties as to the applicable law; and that the intention of the parties had been for the insurance contract to be governed by Texan law.

LANDLORD AND TENANT

Business premises - landlord opposing grant of new tenancy on ground of intention to use premises for own business - landlord required to establish genuine commitment to run viable business

Zarvos v Pradham and another [2003] EWCA Civ 208: CA (Lords Justice Ward, Clarke and Longmore): 7 March 2003

In 1977, the landlord purchased premises from which he ran a restaurant.

In 1994, he let the premises to the tenants, who began to conduct their own restaurant business there.

In 2000, the landlord sought to terminate the tenancy, giving the tenants notice that, under section 30(1)(g) of the Landlord and Tenant Act 1954, he would oppose the grant of a new tenancy, intending to carry on his own business there.

The judge rejected the landlord's case, holding that, notwithstanding the substantial equity in the premises, the landlord's statements of intent were unrealistic since too large a loan was required and thus he did not genuinely 'intend', there being lack of evidence of his having reasonable prospects of bringing it about.

The landlord appealed.

Ivan Clarke (instructed by C P Christou) for the landlord; Timothy Higginson (instructed by Mishcon de Reya) for the tenants.

Held, dismissing the appeal, that section 30(1)(g) of the Landlord and Tenant Act 1954 required the landlord to establish a genuine, not colourable, commitment to carry on business at the premises, together with a real possibility of being able to do so; that the judge had been entitled to concentrate on the requirement for the landlord to raise 40,000 to finance the venture and his failure to adduce evidence of his ability to do so; that the landlord could not now be permitted to adduce fresh evidence of the availability to him of loan/overdraft; and that, accordingly, the landlord had no grounds for opposing the new tenancy.

LOCAL GOVERNMENT

Pension - long-service award resulting in enhanced pension - lawful if genuinely reflecting pensioner's merit

Barking and Dagenham London Borough Council v Watts: ChD (Mr Justice Jacob): 26 February 2003

The council made a long-service award to the pensioner, enhancing the pension which she subsequently drew.

After receiving counsel's advice that its policy of making such awards might have been unlawful, and having been refused permission by the government to continue paying the enhanced element of its pensions, the council informed the pensioner that it would no longer be paying the enhanced element of her pension.

She complained to the pensions ombudsman, who held that the pensioner's long-service award had been awarded for a proper purpose and hence was lawful and that the council's refusal to pay the enhanced element constituted maladministration.

The council appealed.

James Goudie QC and Julian Milford (instructed by Barlow Lyde & Gilbert) for the council; Nicholas Randall (instructed by Thompsons) for the pensioner.

Held, allowing the appeal in part, that, although long-service awards which were merely a ruse to inflate pensions and were negotiated one-off payments were unlawful, a policy of making such awards would be lawful if it reflected the officer's continued worth as an employee, were made to attract staff to the service and dissuade existing officers from leaving, and were discretionary so that each case was considered on its merits; that, since there was ample material to justify the conclusion of fact that the pensioner's long-service award had been awarded not merely as a matter of routine but on her particular merit, the award was lawful and she was entitled to her enhanced pension; but that, in the circumstances, there had been no maladministration.

PRACTICE

Evidence - judge's findings of fact in previous proceedings brought by director challenged on application for director's disqualification - challenge not abuse of process

Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321: CA (Sir Andrew Morritt Vice-Chancellor, Lord Justice Potter and Lady Justice Hale): 11 March 2003

A company director instituted proceedings for wrongful dismissal.

His employers made allegations against him of grave misconduct.

The action was tried and judgment delivered.

The claim was later compromised.

In the meantime, the Secretary of State for Trade and Industry applied for a disqualification order against him under the Company Directors Disqualification Act 1986.

At a pre-trial review, the judge ordered that neither party to that application was entitled to challenge, but was bound by, the findings made by the judge in the earlier proceedings.

The director appealed.

Charles Purle QC (instructed by Jones Day Gouldens) for the director; Michael Todd QC and Philip Gillyon (instructed by the Treasury Solicitor) for the secretary of state.

Held, allowing the appeal, that a collateral attack on an earlier decision of a court of competent jurisdiction might be, but was not necessarily, an abuse of process; that, if the earlier decision were in criminal proceedings, by sections 11 to 13 of the Civil Evidence Act 1968 the conviction would constitute prima facie evidence only; that, if the parties to later civil proceedings were not parties to the earlier proceedings, it would only be an abuse of process to challenge the findings of the judge in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings to relitigate the same issues or (ii) to permit such relitigation would bring the administration of justice into disrepute; and that, accordingly, a respondent to disqualification proceedings was not precluded from challenging findings of fact made in a previous action to which he was a party which were relevant in the disqualification proceedings.

TORT

Negligence - misfeasance in public office - corrupt practice of police officer - chief constable not vicariously liable

Marsh v Chief Constable of Lancashire Constabulary; CA (Lords Justice Potter, Mummery and Chadwick); 6 March 2003

The claimant's former business partner assaulted him and was arrested and released on bail after being charged for assault, whereupon the assailant returned to the claimant's office and chased him away.

At a private meeting with a detective police constable, the claimant agreed to become a police informant and paid to the detective constable 10,000 to join a protection scheme when he had been assured by the constable that he could under the scheme buy and sell stolen cars and he would also be protected from the assailant.

The claimant was later arrested by the police for dealing in stolen cars and following a lengthy interview with the claimant on remand, the detective constable was charged with corruption on the basis that the claimant should be a prosecution witness against the detective constable.

The claimant claimed that the chief police constable was vicariously liable for false arrest, negligence in failing to investigate the assailant's activity and misfeasance in public office and sought damages.

The claim was struck out on the basis that there was no cause of action against the defendant.

The claimant appealed.

Timothy Holroyde QC and Kevin Slack (instructed by Forbes, Blackburn) for the claimant; Geoffrey F Tattersall QC (instructed by Lancashire County Council Legal Services, Preston) for the Chief Constable.

Held, dismissing the appeal, that the police did not owe a private law duty to investigate and suppress crime and that the retention of a person in the role of an informant could not, ipso facto, create any personal duty of care when the special relationship was based on the manifest unlawfulness of the scheme; and that the facts pleaded failed disclose any deliberate wrongdoing or malice by the police force and the allegation of bad faith on the part of the corrupt detective constable did not constitute misfeasance in public office.