Immigration Criminal Evidence Taxation Prisons Practice Social Security


Immigration



Support for asylum seekers - offer of accommodation - authorities not obliged to investigate risk of harm if offer accepted



R (Gezer) v Secretary of State for the Home Department: CA (Lord Justice Laws, Lord Justice Carnwath and Mr Justice Elias: 17 December 2004


The applicant, his wife and two dependent children were of Turkish nationality and Kurdish ethnic origin. They came to the UK in claiming asylum. The family were offered accommodation on a council estate in Glasgow, which they accepted because otherwise all financial support would cease.


There they suffered racial abuse and violence. When, eventually a group of men attacked the flat and one child was threatened with a knife, they returned to London. The family was then offered accommodation in another estate in Glasgow.


The offer was refused as the family were too terrified to return to Glasgow, and in consequence they received only subsistence support. The applicant sought judicial review of the decision of the secretary of state, through the agency of the National Asylum Support Agency (NASS), to disperse the applicant and his family to Glasgow, and the later decision to return them to Glasgow after they had left because of abuse and violence at the hands of the local population.


The applicant claimed that article 3 of the European Convention on Human Rights obliged NASS protect him and his family and to make inquiries into the risk of harm likely to come to them. The application for judicial review was refused and the applicant appealed.


Rabinder Singh QC and Stephanie Harrison (instructed by Harter Loveless, London) for the applicant; Monica Carss-Frisk QC and Lisa Giovannetti (instructed by the Treasury Solicitor) for the secretary of state.


Held, that the state enjoyed a discretion in forming and implementing policy notwithstanding that the outcome might expose an individual to treatment that might engage article 3; and that the secretary of state, in exercising his discretion to provide support for asylum-seekers and their dependants under section 95(1) of the Immigration and Asylum Act 1999 through the agency of NASS, was not required to make special inquiries into the possibility that the individual in question might be harmed by the local population if he accepted the offer of accommodation made to him.



 Back to top



Criminal



Restraining order prohibiting defendant from 'abusive action' towards complainant - defendant parking in obstructive manner - meaning of words of order question of fact for jury in accordance with their ordinary meaning



R v Evans: CA (Lord Justice Dyson, Mr Justice Grigson and Judge David Clarke): 6 December 2004

Following the defendant's conviction for harassment, a restraining order was made against her which prohibited her from being 'abusive by words or actions towards' the complainant, her neighbour.


She was alleged to have breached the order by deliberately parking her car so that it obstructed the complainant's visitor's car. The judge rejected a submission of no case to answer, holding that it was open to the jury to regard the defendant's conduct as 'abusive' in the widest application of that term. The defendant appealed, arguing that the phrase 'abusive actions' was not clear and unambiguous and should have been given a narrow interpretation.


Huw Evans (assigned by Registrar of Criminal Appeals) for the defendant; Peter Davies (Crown Prosecution Service, Cardiff) for the Crown.


Held, dismissing the appeal, that the meaning to be attributed to ordinary words contained in a court order was a question of fact, not law, to be determined according to their ordinary usage in the English language; that the criminal context was no reason for giving a narrow or strained meaning to words which bore their ordinary meaning, and the judge had therefore been correct to refuse the submission of no case to answer; and that the jury had been entitled to conclude that the defendant had acted out of spite in order to annoy the complainant and that in all the circumstances it was an abusive action. (WLR)



 Back to top



Evidence



Assessment of evidence in civil matters - evidence to be evaluated in its entirety - witnesses to be challenged with other side's case



EPI Environmental Technologies Inc and another v Symphony Plastic Technologies plc and another: ChD (Mr Justice Peter Smith): 21 December 2004

The claimants claimed damages from the defendants for, among other things, breach of confidence arising from an allegation that the defendants had substantially copied the claimants' formulation for an additive used in the manufacture of thin film plastic products, such as carrier bags, in order to make them degradable.


Issues of credibility were raised during the trial in relation to expert and non-expert evidence.


Geoffrey Hobbs QC and George Hamer (instructed by Harold Benjamin Littlejohn, Harrow) for the claimants; Peter Prescott QC and Iona Berkeley (instructed by Edwards Geldard, Cardiff) for the defendants.


Held, dismissing the claim in part, that the court should be aware of a number of precautions when assessing the witness evidence in a case; that the court should evaluate the witness's performance in the light of the entirety of his evidence and that, although a witness could make mistakes, those mistakes might not affect the other parts of his evidence; that witnesses should be challenged with the other side's case to enable the judge to assess that witness's response, especially since the judge did not see the evidence in chief live; that, moreover, those precautions were equally applicable to experts since a judge was rarely helped by competing expert reports expressing opinions which were not tested.



 Back to top



Taxation



Inheritance tax - valuation of deceased's estate - personal debts not available to reduce value of settled assets



St Barbe Green and another v Inland Revenue Commissioners: ChD (Mr Justice Mann): 11 January 2005

The deceased died in 2002 having substantial personal debts. He had been interested as life tenant in certain funds under three settlements. The trustees of the settlements submitted inheritance tax returns claiming to deduct from the settlements the amount of the deficiency in the deceased's personal estate.


The Inland Revenue did not accept the deduction and issued a notice of determination. The trustees appealed under section 222 of the Inheritance Tax Act 1984.


Tony Oakley (instructed by Gisby Harrison, Cheshunt) for the trustees; Rupert Baldry (instructed by the Solicitor, Inland Revenue) for the Inland Revenue.


Held, dismissing the appeal, that the case involved construing sections 5(1) and (3) and 49(1) of the Inheritance Tax Act 1984; that by section 5 a person's estate was the aggregate of all property to which he was beneficially entitled, and in determining the value of that estate the deceased's liabilities were to be taken into account; section 49(1) of the Act provided that a person beneficially entitled to an interest in possession in settled property was to be treated as beneficially interested in the property in which the interest subsisted; and that the effect of those provisions did not permit the excess of the liabilities over the assets in the deceased's personal estate to be used to reduce the value of assets held in the settlements under which he had an interest as life tenant.



 Back to top



Prisons



Prisoners' rights - young female offender - entitled to be heard before removal to segregation unit



R(SP) v Secretary of State for Home Department: CA (Lord Justice Ward, Lord Justice Jacob and Lord Justice Hooper): 21 Dec 2004

The applicant was a 17-year-old girl detained in a young offenders' institution awaiting trial for burglary. She was highly disturbed and with a personality characterised by sadistic traits with lack of empathy to her victim and an inability to maintain personal relationships. She was subsequently sentenced to five years' imprisonment.


The judge in the Administrative Court upheld the applicant's claim for declaratory relief by way of judicial review, holding that failure by the home secretary to give her the opportunity to be heard on allegations that led to her detention for three weeks in a segregation unit was a breach of natural justice and unlawful. The secretary of state appealed.


Jenni Richards (instructed by the Treasury Solicitor) for the secretary of state; Ian Wise (instructed by Howard League for Penal Reform) for the applicant.


Held, dismissing the appeal, that there was a substantial difference in regime for a young offender detained on her unit and the segregation regime; and that contemporary standards of fairness together with Prison Service Order 4950, issued on 11 February 2000 and outlining the regime for young women younger than 18, required an opportunity to be given to them to make representations before an order was made for their removal to a segregation unit for reasons of good order and discipline.



 Back to top



Practice



Judge's jurisdiction - circuit judge not certified for High Court cases hearing Queen's Bench Division case believing it to be county court matter - decision valid as decision of de facto judge



Baldock v Webster and others: CA (Lord Justice Kennedy, Lord Justice Laws and Lady Justice Arden): 21 December 2004

The defendants had acted for the claimant in an action for personal injuries which had been struck out for want of prosecution. In a subsequent action against the defendants in the Queen's Bench Division, the defendants admitted liability but contested the extent to which the claimant's injuries related to the accident.


The district judge ordered the trial of a preliminary issue as to the extent to which the accident caused the claimants' injuries. The case was heard by a circuit judge who had not been appointed to hear High Court matters, but, believing that he was hearing a county court matter, he found that the accident had caused 75% of the claimant's injuries. Subsequently the defendants discovered that the judge had not been appointed to hear the High Court matters and appealed.


Adrian Salter (instructed by Cripps Harries Hall, Tunbridge Wells) for the defendants; Robert Leonard (instructed by DMH Solicitors, Brighton) for the claimant.



Held, dismissing the appeal, that the judicial officers had a colourable title to hear the case; that he was entitled to assume that the case was validly listed before him; that the common law de facto doctrine could save the decision of a country court judge when he wrongly sat to decide a High Court matter thinking that he was hearing a county court matter; that public confidence in the judicial system should not be undermined by challenging the authority of the judge on technical points; and that the advocates could ensure that the court proceedings were properly conducted.



 Back to top



Social Security



Jobseeker's allowance - separated parents' shared care arrangements for children - award discriminatory on grounds of sex



Hockenjos v Secretary of State for Social Security (No 2): CA (Lord Justice Ward, Lady Justice Arden and Lord Justice Scott Baker): 21 December 2004

The claimant, the father of two children, was separated from the mother. A joint residence order was made together with shared arrangements on an equal basis.


The claimant's complaint that the UK domestic law provisions and entitlement to a supplement under section 1 of the Jobseekers Act 1995 and regulations 77 and 83 of the Jobseeker's Allowance Regulations 1996 (SI 1996/207) indirectly discriminated against him was rejected by a social security commissioner. The claimant appealed.


Richard Drabble QC (instructed by Ford Simey, Exmouth) for the claimant; Nicholas Paines QC and C Patry (instructed by the Solicitor, Department of Work and Pensions) for the secretary of state.


Held, allowing the appeal, that the state gave unemployment relief, called jobseeker's allowance, with a supplement for those responsible for children that was linked to child benefit; that the effect of linking entitlement to the supplement to child benefit, a non-means tested benefit that in shared-care cases generally went to the mother, had a diverse impact on fathers; that, accordingly, regulations 77 and 83 of the 1996 regulations violated the prohibition against discrimination on the grounds of sex in article 4 of the Equal Treatment Directive (1979/7/EEC); and that, as the secretary of state had failed to establish that such discrimination was justified, the claimant was entitled to financial compensation.



 Back to top