Criminal


Defendant silent on legal advice when interviewed by police - adverse inference - inference not to be drawn where defendant genuinely and reasonably relying on advice of solicitor to remain silent



R v Beckles: CA (Lord Woolf Chief Justice, Mr Justice McCombe and Mr Justice David Clarke): 12 November 2004



The defendant was charged with robbery, false imprisonment and attempted murder. The Crown alleged that the victim went to a flat where he was robbed by the defendant and others, prevented from leaving the flat, and finally thrown out of the window, sustaining injuries to his spinal cord resulting in paraplegia.



When arrested, the defendant said that the victim 'wasn't pushed, he jumped' but, after seeing his solicitor, refused to answer any questions when interviewed. The judge directed the jury as to their right, under section 34 of the Criminal Justice and Public Order Act 1994, to draw adverse inferences from the defendant's silence during an interview with the police. The defendant was convicted and his appeal against conviction was dismissed.



After a successful application to the European Court of Human Rights, which held that there had been a violation of the defendant's rights under article 6(1) of the European Convention on Human Rights owing to the trial judge's directions to the jury, the Criminal Cases Review Commission referred the case back to the Court of Appeal.



Anthony Jennings QC and Paul Mylvaganam (instructed by Hickman & Rose, London) for the defendant; David Perry and Esther Schutzer-Weissman (instructed by the Crown Prosecution Service, London) for the Crown.



Held, allowing the appeal and ordering a retrial, that the ultimate question for the jury, under section 34, was whether the facts relied on at the trial were facts which the defendant could reasonably have been expected to mention at interview; that it was possible for a defendant genuinely to rely on a solicitor's advice to remain silent but to do so because it suited his purpose; that that might mean he was not acting reasonably in not mentioning the facts; and that, accordingly, the jury should not draw an adverse inference if they considered that the defendant had genuinely and reasonably relied on the advice of his solicitor to remain silent. (WLR)



Employment



Trade unions - collective bargaining agreements - rights to recognition to conduct collective bargaining not requiring support of majority of members



R (National Union of Journalists) v Central Arbitration Committee and another: QBD (Admin) (Mr Justice Hodge): 19 November 2004


The claimant union applied for recognition to conduct collective bargaining in relation to journalists employed in the sports division of a newspaper publisher. The Central Arbitration Committee (CAC) rejected the application as inadmissible, having concluded that another union (BAJ) already had a valid recognition agreement with the publisher.



The claimant sought judicial review of the decision contending, among other things, that since BAJ had, at most, one employee member while the claimant represented probably more than half the journalists working in the division, the CAC had erred in construing paragraph 35 of schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (as inserted by sections 1(1), 3 and schedule 1 to the Employment Relations Act 1999), in concluding that there was a collective bargaining agreement, and that such construction was incompatible with article 11 of the European Convention on Human Rights.



John Hendy QC and Jennifer Eady (instructed by Thompsons, London) for the claimant; Dinah Rose (instructed by the Treasury Solicitor) for the CAC; Thomas Linden (instructed by Lovells, London) for the publisher.



Held, dismissing the claim, that since there was nothing in the legislation to require an employer to enter into a recognition agreement to conduct collective bargaining with a trade union which had majority or substantial support, neither the wishes of the workforce nor the representative nature of the union were relevant in the matter; that article 11 did not impose any positive obligation on a state to grant a union 'the right' to conduct collective bargaining with any particular employer; and that, since all the claimant union's freedoms (including the right to take industrial action) were preserved under the legislation, the statutory procedure had not worsened the position of trade unions or their members and it followed that paragraph 35 was wholly compatible with article 11.



Immigration



Asylum - fast-track pilot scheme to dispose of certain asylum applications - no unacceptable risk of unfairness provided scheme operated in accordance with written flexibility policy



R (Refugee Legal Centre) v Secretary of State for the Home Department: CA (Lords Justice Chadwick, Sedley and Dyson): 12 November 2004


The home secretary introduced a fast-track pilot scheme to deal with and dispose of straightforward asylum applications involving single male applicants arriving from countries where generally no serious risk of persecution was believed to have existed. On their arrival, the applicants who were considered suitable for the fast-track decision were to be taken to a removal centre for interview, in the presence of a solicitor, by an experienced senior officer of the Home Office. The officer's decision was to be delivered the following day, with a right of appeal in refused applications to an adjudicator within two days.



The adjudicator would hear the appeal the next day and give a decision on the following day. Any application to the Immigration Appeal Tribunal for permission to appeal would be within two days of the adjudicator's decision and the tribunal would determine the applications within three days and dispose of any appeal within two days thereafter. If the application were refused, the applicant could apply within ten days to the High Court for statutory review of that decision.



The claimant, an independent organisation providing legal services to those seeking humanitarian protection, sought judicial review by way of a declaration that the fast-track system was inherently unfair and thus unlawful. Mr Justice Collins [2004] EWHC 684 (Admin); [2004] Imm AR 142, dismissed the claim. The claimant appealed.



Michael Fordham and David Pievsky (instructed by Public Law Project, London) for the claimant; Robin Tam (instructed by the Treasury Solicitor) for the home secretary.



Held, dismissing the appeal, that the risk of unfairness should be reduced to an acceptable minimum; and that, considered in the round and at the point of entry, the system did not carry an unacceptable risk of unfairness provided it was operated in a way which recognised the variety of circumstances in which fairness required an enlargement of the standard timetable, to which end a written flexibility policy should be adopted and implemented. (WLR)



The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales. WLR means that a report has been submitted for publication in the Weekly Law Reports