Criminal

Practice-statutory defence - defendant having legal burden of proving specified facts - not necessarily breaching presumption of innocence

Attorney-General's Reference (No 1 of 2004); R v Edwards; R v Denton; R v Jackson; R v Hendley; R v Crowley; CA (Lord Woolf, Lord Chief Justice, Lord Justice Judge, Mr Justice Gage, Mr Justice Elias and Mr Justice Stanley Burnton): 29 April 2004

In each case the defendants were alleged to have committed offences under legislation that purported to impose on them the burden of proving certain issues.

On an Attorney-General's reference, four interlocutory appeals and an appeal against conviction, the issues were whether the reverse burden was a legal or an evidential one and whether it contravened the presumption of innocence in article 6(2) of the European Convention on Human Rights.

David Perry and Adina Ezekiel (instructed by the Treasury Solicitor) for the Attorney-General in the reference; David Holborn (assigned by the Registrar of Criminal Appeals) for the defendant; Neil Hinton (assigned by the Registrar of Criminal Appeals) for Edwards; David Perry and Adina Ezekiel (instructed by the Solicitor, Department of Trade and Industry) for the prosecution; Emma Goodall (assigned by the Registrar of Criminal Appeals) for Denton and Jackson; Nick Ham (instructed by the Solicitor, Greenwich London Borough Council) for the prosecution; Nigel Sweeney QC (assigned by the Registrar of Criminal Appeals) for Hendley; Michael Burrows and Bernard Linnemann (instructed by the Crown Prosecution Service, Wolverhampton) for the Crown; Michael Newport (assigned by the Registrar of Criminal Appeals) for Crowley; Azza Brown (instructed by the Crown Prosecution Service, Snaresbrook) for the Crown.

Held, answering the points of law on the reference, allowing the first interlocutory appeal but dismissing the other appeals, that in deciding whether a statutory defence imposed a legal or evidential reverse burden of proof courts should strongly discourage the citation of authority other than R v Johnstone [2003] 1 WLR 1736 and the present guidance; that the common law and the language of article 6(2) had the same effect, both permitting legal reverse burdens of proof in the appropriate circumstances; that such reverse legal burdens would usually be justified if the prosecution had to prove the essential ingredients of the offence but, in respect of a particular issue, it was fair and reasonable to deny the defendant the general protection normally guaranteed by the presumption of innocence; that the assumption should be that Parliament would not have created a reverse legal burden without good reason; that the easier it was for the defendant to discharge a reverse legal burden, as where the facts were within his own knowledge, the more likely it was that it would be justified; that how difficult it would be for the prosecution to establish the facts was also relevant to whether such a reverse burden was justified; that the ultimate question was whether such a reverse burden would prevent a fair trial and, if it would, it must either be interpreted as imposing only an evidential burden, if that was possible, or it should be declared incompatible with article 6(2); and that, if only an evidential burden was placed on the defendant there would be no risk of contravention of article 6(2).

(WLR)

Prisoners - home secretary blocking release on licence of prisoner serving sentence over 15 years - no contravention of right to liberty and non-discrimination

R (Clift) v Secretary of State for the Home Department: CA (Lord Woolf Chief Justice, Lords Justice Rix and Carnwath): 29 April 2004

In 1994 the claimant was sentenced to 18 years' imprisonment for attempted murder and causing grievous bodily harm.

In 2002 the Parole Board recommended his release on licence, but the home secretary rejected that recommendation.

The claimant sought judicial review, on the ground that the home secretary's power to determine when prisoners should be released on licence, which under sections 35 and 50 of the Criminal Justice Act 1991 and the Parole Board (Transfer of Functions) Order 1998 was confined to those serving determinate sentences of 15 years or more, contravened his right to liberty in article 5 of the European Convention on Human Rights when read with the right to non-discrimination in article 14.

Mr Justice Hooper [2003] EWHC 1337 (Admin); (see [2003] Gazette, 29 August, 32) dismissed the claim.

The claimant appealed.

Tim Owen QC and Kris Gledhill (instructed by Pattersons, Halifax) for the claimant; Jonathan Crow and Steven Kovats (instructed by the Treasury Solicitor) for the home secretary.

Held, dismissing the appeal, that it was arguable that R (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1 and R (Smith) v Parole Board (No 2) [2003] EWCA Civ 1269; [2004] 1 WLR 421; (see [2003] Gazette, 9 October, 34) did not exclude all reliance on article 5 by prisoners in respect of whom there had been a proper sentencing process; that there had been a material difference between the treatment of the claimant, whose release was subject to two decision-makers, and the treatment of his chosen comparators (those serving determinate sentences of less than 15 years) in relation to whom the Parole Board's decision was final; that the chosen comparators were in an analogous situation and, therefore, the less favourable treatment had to be justified; but that it was perfectly reasonable that the home secretary, who was democratically accountable, should retain a power over the release of those determinate sentence prisoners who generally had committed the most serious crimes or had the worst record, or both; and that, accordingly, the difference in treatment was justifiable and there was no contravention of article 5 read with article 14.

(WLR)

Discrimination

Transsexual applying for appointment as police constable - rejection on ground of inability to carry out personal searches on either males or females amounting to unlawful discrimination

Chief Constable of West Yorkshire Police v A: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell): 6 May 2004

In March 1998 the applicant, a male-to-female transsexual, was rejected for appointment to the police force on the ground that as a transsexual she would not be able to satisfy the requirement of section 54(9) of the Police and Criminal Evidence Act 1984 that personal searches of detained persons be carried out by a constable 'of the same sex as the person searched'.

She complained that she had been discriminated against on the ground of sex.

The chief constable accepted that there was a prima facie case of sex discrimination within the meaning of the Sex Discrimination Act 1975, but contended that the need to have a person other than a transsexual to carry out searches was 'a genuine occupational qualification' falling within the exception in section 7(2)(b)(i).

An employment tribunal upheld the complaint, but the Employment Appeal Tribunal allowed the chief constable's appeal.

The Court of Appeal allowed the applicant's appeal.

The chief constable appealed.

David Bean QC, David Jones and Mathew Purchase (instructed by Sharpe Pritchard, London) for the chief constable; Rabinder Singh QC and James Strachan (instructed by the Treasury Solicitor) for the Secretary of State for Trade and Industry as intervenor; Nicholas Blake QC and Stephanie Harrison (instructed by the Equal Opportunities Commission) for the applicant.

Held, dismissing the appeal, that transsexual persons who had successfully undergone gender reassignment surgery were entitled to be treated, so far as possible, equally with non-transsexual members of their acquired gender; that 'the same sex' in section 54(9) of the 1984 Act and 'woman', 'man' and 'men' in sections 1, 2, 6, and 7 of the 1975 Act were to be read as including the acquired gender of a post-operative transsexual who was visually and for all practical purposes indistinguishable from non-transsexual members of that sex; that since the applicant presented as a woman she was entitled to be treated as being of the same sex as a female; that (Lord Rodger of Earlsferry dubitante) therefore there could be no objection to her carrying out searches on female suspects; that (per Lord Rodger of Earlsferry) the ability to carry out searches in the terms of section 54(9) of the 1984 Act was not a pre-condition for the employment of a police constable and the chief constable was free to make other appropriate arrangements so that section 7(2)(b) of the 1975 Act did not apply; and that, accordingly, the applicant had been discriminated against on grounds of sex in the refusal to appoint her as a police constable.

(WLR)

Dismissal of employee making complaints of racial discrimination - tribunal dismissing complaints of racial discrimination but making award for injured feelings for victimisation - award of damages not conflicting with dismissal of discrimination claim - no entitlement to award for loss of earnings

Lisk-Carew v Birmingham City Council and another: CA (Lord Justice Kennedy, Lord Justice May and Lord Justice Hooper): 25 April 2004

An employee of the city council was suspended on full pay.

He unsuccessfully made a complaint of racial discrimination to the employment tribunal and, while three more similar complaints were pending, the council held a disciplinary hearing and subsequently dismissed him.

The employment tribunal held that his dismissal was fair because of his failure to comply with the reasonable instructions of the council and dismissed his complaint of racial discrimination; however, it found discrimination by way of victimisation because his further complaints to the tribunal played a part in his dismissal, and awarded him 5,000 for injured feelings.

The employee appealed to increase the compensation so as to include loss of earnings, and the council cross-appealed, contending that the employee was not entitled to any damages since his complaint of racial discrimination had been dismissed and the award of damages was inconsistent with that finding.

The employee in person; Edward Pepperall (instructed by Birmingham City Council Legal Services) for the council.

Held, dismissing the appeal and the cross-appeal, that an employee was not entitled to any compensation for loss of earnings unless he had shown that he had suffered special damages by reason of victimisation by his employer; that since the employee had been found to have been fairly dismissed, his loss of earnings had not flowed from victimisation by his employer; that the rationale of awarding compensation for victimisation was to protect the employee who had made honest complaints under section 2 of the Race Relations Act 1976 of discrimination by victimisation which had influenced his dismissal, even where the allegation of racial discrimination contrary to section 1 of the Act had actually failed.

Landlord and tenant

Covenant to repair implied by statute - award of damage to compensate tenant for breach of covenant - damages to be reflective of rental value of demised premises

Shine v English Churches Housing Group: CA (Lords Justice Keene and Wall): 7 April 2002

The claimant was an unemployed weekly tenant at low rent of a flat belonging to the defendant, a charity and a registered social landlord.

He brought an action for aggravated damages of 160,000 for the continued failure of the defendant to repair the demised flat for about seven years.

The defendant claimed possession of the flat for the claimant's failure to report the disrepair to the defendant promptly and persistent failure to give access to the flat.

At trial the judge granted to the claimant permission to amend his claim to claim damages to around 5 million.

The judge awarded damages of 19,000 for breach of the implied covenant to repair under section 11 of the Landlord and Tenant Act 1985 and dismissed the defendant's claim for possession.

The landlord appealed.

Robert Bowker (instructed by Marsons, Bromley) for the defendant; the claimant in person.

Held, allowing the appeal in part, that the award of damage was not for a tort committed by the defendant but for breach of covenant by the defendant contrary to section 11 of the 1985 Act, to compensate the tenant for his stress and inconvenience on the basis that he was not getting proper value for the rent payable for the flat which was defective; that the award should reflect the rental value, which was modest and far below that which the flat would command in the open market; and that, accordingly, the damages would be reduced to 8,000.

The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.ukWLR means that a report has been submitted for publication in the Weekly Law Reports