Criminal Ecclesiastical Employment Immigration Practice Road Traffic


Criminal



Evidence of bad character - new provisions relating to admissibility applying to all trials and Newton hearings begun after commencement date



R v Bradley: CA (Lord Justice Rose, Mr Justice Mitting and Mr Justice Walker): 14 January 2005



The defendant's trial on charges of robbery and having an imitation firearm with intent had started on 15 December 2004, the day on which the new provisions in the Criminal Justice Act 2003, relating to the admissibility of evidence of bad character, came into force. The judge ruled in favour of the Crown's application to adduce evidence, in accordance with section 101(1)(d) of the 2003 Act, of the defendant's conviction of robbery in July 2000. The defendant was subsequently convicted. He appealed against conviction on the grounds that the new provisions only applied to criminal proceedings begun by the laying of a charge or information after 15 December 2004 because 'criminal proceedings' in section 141 had an autonomous meaning, not governed by the qualifying words 'in relation to which the strict rules of evidence apply' in sections 112(1), 134(1) and 140.



The Crown contended that the provisions applied to all trials and Newton hearings (R v Newton (1982) 77 Cr App R 13) begun after 15 December 2004 because 'criminal proceedings' in section 141 had the same meaning as the same phrase in sections 112(1), 134(1) and 140, and the words 'criminal proceedings in relation to which the strict rules of evidence apply' denoted, and denoted only, those parts of criminal proceedings to which those rules applied; any other conclusion would produce unacceptable and unmanageable consequences in many cases.



Richard Bloomfield (assigned by the Registrar of Criminal Appeals) for the defendant; Richard Horwell and Robert Woodcock (instructed by the Crown Prosecution Service, headquarters) for the Crown.


Held, dismissing the appeal, that 'criminal proceedings' in section 141 had the same meaning as 'criminal proceedings' in sections 112(1), 134(1) and 140; and that, accordingly, the new provisions in the 2003 Act relating to the admissibility of evidence of a defendant's bad character applied to all trials and Newton hearings begun after the commencement date of 15 December 2004.



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Judge directing acquittals on four counts in indictment - acquittal of offence not conclusive as to innocence



R v Terry: CA (Lord Justice Auld, Mr Justice Owen and Mr Justice Hedley): 21 December 2004


The defendant was charged with burglary, theft and handling stolen goods. Much of the prosecution evidence consisted of tape-recorded conversations obtained by the installation of a listening device in a Fiat Punto car linked to the defendant. The judge acceded to a submission that in relation to four of the counts, where there was no other evidence that the defendant was in the car at the relevant time, he should rule inadmissible the evidence of a voice recognition expert attributing to the defendant statements made during conversations in the car. Accordingly, the judge directed the jury to enter verdicts of not guilty on four of the 14 counts. Defence counsel sought to pray in aid the four acquittals in the defendant's defence to the remaining counts. The judge allowed evidence of the acquittals to be admitted in evidence but refused the direction sought, namely that the acquittals were conclusive proof that the defendant was not in the car and not speaking at the time of the excluded recordings and, therefore, could not have been one of the speakers at the time of the recordings in question. The defendant was convicted on five of the counts. He appealed against conviction on the grounds that the judge's ruling was wrong.


Rupert Pardoe and Fiona Horlick (assigned by the Registrar of Criminal Appeals) for the defendant; David Bartlett (instructed by the Crown Prosecution Service, Winchester) for the Crown.


Held, dismissing the appeal, that an acquittal was not conclusive evidence of innocence unless by that word it was meant not guilty in law of the alleged offence to which it related; nor did it mean that all relevant issues had been resolved in favour of a defendant; that the test as to the admissibility of such evidence was relevance, not conclusiveness for all purposes; and that, accordingly, the judge's ruling was correct.



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Ecclesiastical



Painting donated to church subsequently discovered to be very valuable - church not in financial need but retention of painting imposing burden on church's resources - faculty granted authorising sale



In re Church of the Blessed Virgin Mary, Batcombe: Consistory Court (Timothy Briden, Chancellor): 4 January 2005


In 1922, a member of the Parochial Church Council donated a large painting of the Virgin and Child to the church and it was hung there. It having recently been discovered that the painting dated from the 17th century and was of considerable monetary value, the painting was removed from the church to a place of safety. There was no remaining connection between the church and the donor's family.


The Diocesan Advisory Committee recommended sale of the painting, and the Parochial Church Council had voted in favour of selling it since its retention would result in an unnecessary drain on the church's resources in terms of insurance and storage. The incumbent and churchwardens applied to the Consistory Court for a faculty authorising the sale. The application was decided on the basis of written submissions.



Held, granting the faculty, that, although the guidelines in In re St Gregory's, Tredington [1972] Fam 236, were formulated in the context of a parish church in serious financial difficulties, subsequent cases had emphasised that financial emergency was but one among the good and sufficient grounds which might justify sale; that the matters of particular significance were: first, there was no strong historical, liturgical or architectural connection with the church; secondly, although considerable caution must be exercised where the disposal of a gift might be seen to flout the donor's wishes and to act as a disincentive to other potential benefactors, there was nobody left in the parish who might take offence at the intended sale; and thirdly, while the concept of redundancy could not realistically be applied to purely decorative objects, removal of the picture had prompted no adverse comment; that if the painting was returned to the church, security would have to be enhanced and the church would have to be locked when unattended, thus diminishing the role of the church as a local centre of worship and mission; that retention of the painting would impose ongoing obligations in terms of conservation and insurance. It was too valuable to be returned to the church, and its size militated against storage elsewhere, neither was it obviously suitable for display in a museum; and that, accordingly, in all the circumstances sale by auction, subject to a reserve to be agreed with the auctioneers, should be authorised and the net proceeds of sale applied in accordance with the directions of the court, including provision for investment of a capital sum to meet the future needs of the parish.



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Employment



Discrimination - less favourable treatment - not applicable to non-renewal of fixed-term contract



Department of Work and Pensions v Webley: CA (Lords Justice Ward, Jacob and Wall): 21 December 2004


An employee complained of discrimination, her employer having terminated her fixed-term employment before 52 weeks elapsed. She had been employed on a series of short, fixed-term contracts that had been extended several times.


On the hearing of a preliminary issue, the Employment Appeal Tribunal, remitting the complaint for rehearing by an employment tribunal, held that circumstances could exist giving rise to 'less favourable treatment' in a case where an employer terminated a fixed-term contract of employment. The employer appealed.


Elizabeth Slade QC and Clive Lewis (instructed by Office of the Solicitor, Department for Work and Pensions) for the employer; John Hendy QC and Melanie Tether (instructed by Thompsons, London) for the employee.


Held, allowing the appeal, that properly construed, the provisions in regulation 3 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) entitled an employer not to renew an employee's fixed-term contract at the expiry of its term; and that accordingly, the employee's dismissal could not on its own be the basis of a complaint of 'less favourable treatment'.



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Immigration



Local authority providing accommodation and assistance to overstaying immigrants - withdrawal of assistance and financial assistance for immigrant's return to her country - not contravening family's convention right to family life



Grant v London Borough of Lambeth: CA (Lords Justice Kennedy, Chadwick and Sir Christopher Staughton): 16 December 2004


A woman from Jamaica entered the UK as a visitor and married a British citizen; she gave birth to a son. Her two other sons born in Jamaica later joined her. Subsequently, she separated from her husband and her application to remain in UK was refused. While her further application to remain on extra-statutory and compassionate ground was pending, the local authority provided her with accommodation and assistance pending the outcome of her application. Subsequently, the local authority decided to withdraw support to her and offered to provide her and her children the costs of their return to Jamaica pursuant to the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (SI 2002/3078). On an application to challenge the authority's decision on the immigration point, the judge held that the local authority had no power to provide travelling costs as proposed. The local authority appealed.


Charles Béar QC (instructed by Sternberg Reed Taylor & Gill, London) for Lambeth; Stephen Knafler (instructed by Steel & Shamash, London) for the claimant.


Held, allowing the appeal, that while the local authority had no long-term obligation to provide accommodation and assistance to the overstaying claimant and her family, the 2002 regulations conferred a right on the authority to provide financial assistance for the travel of the claimant and her family as a unit; and that the authority's decision to provide travel costs assistance for the claimant and her children as a family unit adequately protected their convention right to private and family life.



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Practice



Employment tribunal - withdrawal of claim to be litigated elsewhere - proper approach



Sivanandan v Enfield London Borough Council: CA (Lords Justice Peter Gibson, Buxton and Wall): 20 January 2005


In 1997, the claimant brought proceedings against the defendant in the employment tribunal for, among other things, breach of her contract of employment. In September 2000, the tribunal struck out all of the claimant's claims on the ground that her conduct of the proceedings had been frivolous, vexatious and scandalous. The claimant subsequently brought a claim for breach of contract in the Queen's Bench Division. The judge dismissed the defendant's appeal against the master's decision not to strike out the proceedings as an abuse of process, finding that, although it was not recorded in the employment tribunal's record of proceedings, the claimant had withdrawn the part of her claim which related to breach of contract at a preliminary hearing in 1998 in order to pursue it in the Queen's Bench Division, and that it was therefore not finally disposed of by the order of September 2000. The defendant appealed.


Daphne Romney (instructed by Philip Devonald, London Borough of Enfield) for the defendant; Richard O'Dair (instructed by Pollecoff Solicitors, London) for the claimant.


Held, allowing the appeal, that if the claimant's claim in the tribunal had been formally withdrawn and dismissed on the clear basis that it exceeded the tribunal's £25,000 limit on damages and would thus be litigated elsewhere, there would have been no abuse of process; that, however, the claimant's claim had not, on the facts, been withdrawn; that although an employment tribunal was required to seek to avoid informality in its proceedings, on a matter as important as the withdrawal of a claim, or part of a claim, a clear procedural discipline was required; that if a claim was to be withdrawn from the tribunal on the basis that it was to be pursued elsewhere, the position must be made clear, and it would be desirable for the tribunal to adjudicate by making an order dismissing the claim on withdrawal so that there would be unambiguous evidence of the circumstances in which, and the reasons for which, the application was withdrawn.



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Road traffic



Sale of four-wheeled trailer with unserviceable brakes and corroded chassis - axle snapping while trailer being towed - trailer not unroadworthy when not carrying anything



R (Newcastle City Council) v Le Quelenec and another: QBD (Lord Justice Latham and Mr Justice Curtis): 13 January 2005


The defendants sold a four-wheeled trailer with unserviceable brakes and a corroded chassis. The sale of it with the knowledge that it was unroadworthy was an offence contrary to regulation 100 of the Road Vehicles (Construction and Use) Regulations 1986. The use of a trailer in such a state in any part of the UK was prohibited. While the buyer was towing the vehicle to his farm, its axle snapped. The Newcastle City Council laid an information against the defendants for selling the unroadworthy trailer. At the hearing, the justices accepted the evidence of the defendants' expert that the trailer used on the road when nothing was being carried in it was not unroadworthy and acquitted them. The council applied for the judicial review of the justices' decision.


Asa Anderson (instructed by the City Council Solicitor) for the city council; the defendants did not appear and were not represented.


Held, dismissing the application, that the justices, having accepted the evidence of the defendants' expert, were entitled to come to the conclusion which they had reached; and that the council had failed to show that the justices had been manifestly wrong in their decision to dismiss the information and acquit the defendants.



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