Criminal Equity Tort

Criminal


Grievous bodily harm - infection of victim with serious sexual disease through consensual sexual intercourse - capable of amounting to offence if no consent to risk of infection


R v Dica: CA (Lord Woolf, Lord Chief Justice, Lord Justice Judge and Mr Justice Forbes): 5 May 2004


The defendant was charged with two counts of inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861, the allegation being that, knowing that he was suffering from HIV, he recklessly transmitted that disease through consensual sexual intercourse to two women who did not know of, and did not consent to, the risk of infection. The defendant contended that he told the women of his condition and that they were nonetheless willing to have sexual intercourse with him. At the end of the prosecution case, the judge ruled that it was open to the jury to convict, notwithstanding R v Clarence (1888) 22 QBD 23, and that whether or not the women knew of the defendant's condition was irrelevant since R v Brown (Anthony) [1994] 1 AC 212 deprived them of the legal capacity to consent to such serious harm. The defendant was convicted and sentenced to eight years' imprisonment. He appealed against conviction.


Jeremy Carter-Manning QC and Nicholas Mather (assigned by the Registrar of Criminal Appeals) for the defendant; Mark Gadsden and Heather Stangoe (instructed by the Crown Prosecution Service, Inner London) for the Crown.


Held, allowing the appeal and ordering a retrial, that in relation to section 20, the outdated restrictions against the successful prosecution of those who, knowing that they were suffering some serious sexual disease, recklessly transmitted it through consensual sexual intercourse, and inflicted grievous bodily harm on a person from whom the risk was concealed and who was not consenting to it, should be removed; that, accordingly, in that context, Clarence had no continuing relevance; that, moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it was no longer authoritative; that if, however, the victim consented to the risk of infection, that did provide a defence under section 20; that, although linked, the ultimate question was not knowledge, but consent; that unless a person was prepared to take whatever risk of sexually transmitted infection there might be, it was unlikely that person would consent to a risk of major consequent illness if that person were ignorant of it; but that the question whether the defendant was reckless and whether the victim consented to the risk of a sexually transmitted disease was always one of fact and case specific; and that, accordingly, the judge should not have withdrawn the issue of consent from the jury. (WLR)


Covert listening device installed in defendant's car recording conversation conducted on mobile telephone - not interception of communication in course of transmission by telecommunication system - recording admissible in evidence


R v E: CA (Lord Justice Rose, Mr Justice Hughes and Mrs Justice Gloster): 26 April 2004


In the course of an investigation into suspected drug dealing by the defendant and others, police officers obtained permission from the relevant chief constable to place a listening device in the defendant's car that provided recordings of conversations between the defendant and other occupants of the car and that also recorded the defendant's end of mobile telephone conversations.


The device did not record any speech by the person to whom the defendant was speaking on the mobile telephone. At a preparatory hearing the judge ruled that such a recording did not amount to an interception of a communication in the course of transmission by a telecommunications system within the meaning of section 2 of the Regulation of Investigatory Powers Act 2000 and that the recording were therefore admissible in evidence. The defendant appealed against that ruling.


Michael Meeke QC and Michael Brabin (instructed by Dunn & Baker) for the defendant; Ian Glen QC and William Hart (instructed by the Crown Prosecution Service) for the Crown.


Held, dismissing the appeal, that an interception as defined in the 2000 Act was concerned with what happened in the course of transmission by a telecommunications system, which was defined in section 2(1) as 'any system...which exists... for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy'; that the recording of a voice speaking on the telephone did not become an interception simply because what was said was recorded; and that, accordingly, the judge's ruling was correct.


Claimant tried in youth court attaining age of 18 by date of conviction - offence triable only on indictment in case of adult - youth court should not remit to magistrates' court for sentence


R (Denny) v Acton Youth Court: QBD (Lord Justice Maurice Kay and Mr Justice Crane): 21 April 2004


The claimant was charged with an offence of attempted robbery, alleged to have been committed when he was aged 17. He was not tried in the youth court until he had turned 18, and was eventually found guilty. The youth court adjourned sentence and remitted him to a magistrates' court, as the local adult court, pursuant to section 9(1) of the Powers of Criminal Courts (Sentencing) Act 2000.


However, the deputy district judge at the magistrates' court considered herself to be without jurisdiction in relation to an offence which, as regards an adult, was not triable summarily, and invited the youth court to reconsider the order to remit pursuant to section 142(1) of the Magistrates' Court Act 1980.


At the youth court, the claimant objected to any such reconsideration and the matter was adjourned to enable an application to be made for judicial review.


Daniel Bunting (instructed by Hiten Patel, Harrow Law Partnership, Harrow) for the claimant. Andrew Ramsubhag (instructed by the Crown Prosecution Service, Ealing) for the Director of Public Prosecutions as an interested party. The defendant did not appear and was not represented.


Held, dismissing the claim but quashing the remittal order, that youth courts and their advisers should never remit under section 9 of the 2000 Act in relation to an offence which would be triable only on indictment in the case of an adult; that there was no good reason why the public interest in seeing those convicted of offences sentenced for them should not be fully respected in the circumstances of this case; and that, accordingly, the defect ought to have led to the quashing of the remittal with the result that the matter remained in the youth court.


Equity


Constructive trust - property purchased by unmarried couple with unequal contributions registered in man's sole name - beneficial interest to be held on trust for both partners - assessment of shares to be made in light of subsequent conduct and contributions


Oxley v Hiscock: CA (Lord Justice Chadwick, Lord Justice Mance and Lord Justice Scott Baker): 6 May 2004


An unmarried couple purchased a home to live from contributions of unequal amounts out of proceeds of sale of their former properties. On the instructions of the claimant given to the solicitors acting for the purchase the home was registered in the sole name of the defendant, who had contributed substantially more money than she had for the purchase. Several years later the parties separated and the house was sold. The judge in the county court held that the there had been a common intention between the parties that the beneficial interest in property should be held for both partners in equal share on resulting trust. The defendant appealed.


Nicholas Francis QC and Christopher Wagstaffe (instructed by The Parry Sharratt Partnership, Whitstable) for the defendant; David Walden-Smith (instructed by Clarkson Wright & Jakes, Orpington) for the claimant.


Held, allowing the appeal, that where a property had been purchased with unequal contributions made by both partners and registered in the name of only one partner the court would infer a common intention that the beneficial interest of the property should be held on trust for both of them, but such inference should not lead the court to conclude that the property was held on resulting trust as from the time of its acquisition in equal shares when there was no evidence that the parties had discussed the exact proportion of their beneficial interests; and that, in order to achieve fairness for both parties, the proper course was to apply the principles of a constructive trust or proprietary estoppel to assess the respective shares after the sale of the property having regard to the conduct and contributions of each party relating to the property after its acquisition.


Tort


Breach of confidentiality - newspaper disclosing details of treatment of claimant for drug addiction and publishing photograph - unjustified infringement of right to privacy


Campbell v MGN Ltd: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell): 6 May 2004


The claimant, a well known fashion model, stated publicly, but untruthfully, that she did not take drugs. The defendant newspaper published articles disclosing that she was a drug addict and was receiving therapy for it through a named self-help group. The articles also gave details of the times, frequency and nature of the therapy and were accompanied by photographs of her in a street as she was leaving a group meeting. The claimant sought damages against the newspaper for breach of confidentiality. She accepted that the newspaper was entitled to publish the fact of her drug addiction and the bare fact that she was receiving treatment, but alleged that the newspaper had acted in breach of confidence by obtaining and publishing the additional details of her therapy at the group meetings and the photographs.


Mr Justice Morland gave judgment for the claimant and held, among other things, that the additional information complained of was confidential and that, having regard to section 12(4) of the Human Rights Act 1998 and balancing articles 8 and 10 of the European Convention on Human Rights scheduled thereto, the publication was not justified in the public interest. The Court of Appeal allowed the newspaper's appeal. The claimant appealed.


Andrew Caldecott QC, Antony White QC and Catrin Evans (instructed by Schillings, London) for the claimant; Desmond Browne QC and Richard Spearman QC (instructed by Davenport Lyons, London) for the defendants.


Held, allowing the appeal (Lord Nicholls of Birkenhead and Lord Hoffmann dissenting), that the test as to whether information was private was to ask whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, would find the disclosure offensive; that the assurance of privacy, confidentiality and anonymity were essential to treatment in a self-help group, so that a person in the claimant's position would find disclosure highly offensive, and might also be deterred from continuing with the therapy, thereby causing a setback to recovery; that therefore the details of the claimant's therapy was private information which gave rise to a duty of confidentiality, and the publication of that information went beyond disclosure which was necessary to add credibility to the legitimate story that the claimant had deceived the public and went beyond the journalistic margin of appreciation allowed to a free press; that the context in which the photographs were used and linked to the articles added to the overall intrusion into the claimant's private life; that taking account of all the circumstances the claimant's right pursuant to article 8 to respect for her private life outweighed the newspaper's right pursuant to article 10 to freedom of expression; and that, accordingly, publication of the additional information and the accompanying photographs constituted an unjustified infringement of the claimant's right to privacy and she was entitled to damages.


Assault - claimant sexually assaulted while resident in children's home run by council - claim based on post-traumatic stress brought more than three years after claimant attaining majority - limitation period commencing only when claimant appreciating link between psychiatric injury and sexual assault


Hodges v Northampton County Council and another; CA (Lord Justice Pill, Lord Justice Dyson and Mr Justice Forbes); 29 April 2004


Between 1981 and 1983 the claimant was a resident in a children's home operated by the county council when he was sexually assaulted on several occasions by the home unit manager employed by the council. The claimant attained the age of 18 on 8 March 1984. He issued a writ on 17 July 1997 against the council and the unit manager claiming damages for negligence. In 2002 he was diagnosed by a psychiatrist as suffering from post-traumatic stress disorder directly arising out of his experience at the children's home. At a preliminary hearing the judge dismissed the claim on the basis that the writ had been issued outside the limitation period of three years after the claimant attained the age of 18, since he could reasonably be expected to have become aware that he had suffered post-traumatic stress disorder immediately following the sexual assaults, within section 14(3) of the Limitation Act 1980. The claimant appealed.


John Grace QC and Joanne Ecob (instructed by Greenfield Whitson, Kettering) for the claimant; Nigel Baker QC and Hugh Preston (instructed by Shoosmiths, Northampton) for the council; Andrew McDonald (instructed by Hillyer-McKeown, Chester) for the second defendant.


Held, allowing the appeal, that in a case where the claim was based on the post-traumatic stress disorder, the proper question for the court was when the claimant had acquired the knowledge of the link between the sexual assaults and post-traumatic stress disorder which was the alleged injury for the purpose of section 14(3) of the 1980 Act, irrespective of any immediate physical effects of the alleged sexual assaults which the claimant might have sustained.



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.uk WLR means that a report has been submitted for publication in the Weekly Law Reports