CONSTITUTIONAL

Statute providing special procedure for passing 'any public Act' - procedure used to pass public Act amending enabling Act so as to enlarge scope of special procedure - amending Act and Acts enacted under enlarged procedure valid

R (Jackson and others) v Attorney-General: QBD (Lord Justice Maurice Kay and Mr Justice Collins): 28 January 2005



The claimants sought juridical review by way of declarations that the Parliament Act 1949 was not an Act of Parliament and was consequently of no legal effect and accordingly, the Hunting Act 2004 was not an Act of Parliament and was of no legal effect, on the grounds that as a matter of construction, the Parliament Act 1911 could not be used to achieve amendments to itself; the procedure prescribed by the 1911 Act was one of delegated legislation, such that it was unlawful for the delegated body, namely the Sovereign and the House of Commons, to enlarge the scope of its own authority without the authority of the parent body, which included the House of Lords; and even if the legislation passed under the 1911 Act were not delegated legislation in the strict sense, it nevertheless emanated from a subordinate legislature which, in the absence of an express power, could not modify or amend the conditions on which its power to legislate was granted.


Sir Sydney Kentridge QC, Richard Lissack QC, Martin Chamberlain and Marcus Haywood (instructed by Allen & Overy, London for the claimants; Lord Goldsmith QC Attorney-General, Philip Sales and Clive Lewis (instructed by the Treasury Solicitor) for the Attorney-General; David Pannick QC and Gordon Nardell (instructed by Collyer-Bristow, London) for the interested party, the League Against Cruel Sports.


Held, dismissing the claim, that the words 'any public Bill' in section 2(1) of the Parliament Act 1911 were sufficient to embrace a Bill to amend the 1911 Act; that the word 'any' was deliberately wide and the existence of express exclusions in the section militated against the implication of additional excluded categories; that the 1911 Act was a special case that arose in a specific context that bore little or no resemblance to delegated legislation as that concept was generally understood; that what emerged when a Bill was enacted pursuant to section 2 of the 1911 Act was itself an Act of Parliament and nothing less; that, therefore, the Parliament Act 1949 was valid; and that, accordingly, since invalidity of the 1949 Act was a prerequisite to the challenge to the Hunting Act 2004, that Act was valid.




CRIMINAL


Evidence - child witnesses - statutory presumption that evidence be given by video link and live television transmission - no violation of child defendant's right to fair trial

R (D) v Camberwell Green Youth Court; R(G) v Camberwell Green Youth Court: HL (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood): 27 January 2005


The defendants, D and G, who were both aged under 16 years old, were charged with robbery, the victim in each case being a child.


In each case, the prosecution applied to the Youth Court pursuant to the Youth Justice and Criminal Evidence Act 1999 for special measures directions permitting the child witnesses against the defendants to give evidence by live television link and video recording.


In D's case, the justices ruled, granting the application, that, since the witnesses were children in need of protection within the meaning of section 21(5) of the 1999 Act, it had the effect of making it mandatory that special measures directions be given. In G's case, the district judge refused the application on the ground that there was no justification for a direction since it would give rise to substantial inequality between prosecution and defence contrary to the right to a fair trial guaranteed by article 6 as scheduled to the Human Rights Act 1998. D applied for judicial review of the justices' decision, and the Crown applied for judicial review of the district judge's decision.


The Divisional Court dismissed D's application and granted the Crown's application. The defendants appealed.


Kier Starmer QC, Quincy Whitaker and Stephen Simblet (instructed by Kaim Todner, London) for D; George Carter Stephenson QC and Mark Hardie (instructed by GT Stewart, London) for G; Jonathan Laidlaw, Mark Heywood and Louis Mably (instructed by the Crown Prosecution Service) for the Crown; David Perry (instructed by the Treasury Solicitor) for the Home Secretary as intervener.


Held, dismissing the appeal, that although at the time of making the special measures directions in respect of child witnesses the court had only limited opportunities for disapplying the statutory presumption in favour of making them, that did not give rise to injustice, because, at a later time, the trial court had sufficient powers pursuant to sections 20(2) and 24(3) of the 1999 Act to consider the interests of justice and take whatever action was needed to secure a fair trial; but that the starting point was always the statutory presumption that there was nothing intrinsically unfair in children giving their evidence by video recording or live television link; that although the child witnesses were not present in court when giving their evidence, all the evidence was produced at the trial in the presence of the defendant, who could hear and see the witnesses against him, and who had every opportunity to challenge and question them, so that the special measures directions did not violate the defendant's right to a fair trial pursuant to article 6; that article 6 did not guarantee the right to a face-to-face confrontation with the witness; that although, unlike a child witness, a child defendant was not entitled to give evidence by video recording or live transmission, that did not result in an inequality of arms as between the prosecution and the defence because the court had flexible inherent powers to redress the balance in each case and to take such steps as were necessary to ensure that a child defendant had a fair opportunity of giving the best evidence he could; and that section 21(5) of the 1999 Act, preventing individualised consideration of the necessity for a special measures direction at the stage at which the direction was made, was compliant with article 6. (WLR)




EQUITY


Defendant putting forward inconsistent arguments in litigation &150; equitable doctrine of election applicable - claimant unable to rely on doctrine in absence of factor making it inequitable for defendant to pursue original argument

Nexus Communications Group Ltd v Lambert and others: ChD (Mr Gabriel Moss QC, sitting as a deputy High Court judge): 31 January 2005

The claimant purchaser and defendant vendors entered into a share-purchasing agreement under which the defendants served a notice implying that documents and accounts served by the claimant were valid.


However, subsequently, the defendants argued inconsistently that the claimant had failed to serve all the documents required.


The claimant commenced proceedings claiming that the notice was invalid and that the defendants were liable to pay money due under the agreement by reason of their inconsistent conduct that gave rise to the equitable doctrine of election.


According to the doctrine, a party could not take the benefit under an instrument or judgment without taking the accompanying burden.


Amanda Tipples (instructed by Osborne Clarke) for the claimant; Siward Atkins (instructed by McEwen Parkinson, London) for the defendants.


Held, dismissing the claim; that although the equitable doctrine of election was applicable to litigation where a party had put forward inconsistent arguments, in order to rely on the doctrine, the other party had to show that the matter went beyond mere inconsistency and that, on established equitable principles, the other party was prevented in pursuing its original argument; and that since the case was based on mere inconsistency, the defendants were entitled to rely on their notice.




DISCRIMINATION


Burden of proof - employees making complaints of sex and race discrimination &150; proper approach to burden of proof

Igen Ltd (formerly Leeds Careers Guidance) and others v Wong; Chamberlin Solicitors and another v Emokpae; Webster v Brunel University (Equal Opportunities Commission and others intervening): CA (Lords Justices Kennedy, Peter Gibson and Scott Baker): 18 February 2005


In the first and third cases, the employees complained of unlawful race discrimination; in the second case the employee complained of unlawful sex discrimination.


Employment tribunals upheld the complaints in the first and second cases but dismissed the complaint in the third.


The Employment Appeal Tribunal dismissed the employer's appeals in the first and second cases and allowed the employee's appeal in the third. The employers appealed.


Elizabeth Slade QC and Richard Leiper (instructed by Lupton Fawcett, Leeds) for the employers in the first case; Antony White QC and James Laddie (instructed by Ford & Warren, Leeds) for the employee in the first case; Mathew Purchase (instructed by CT Emezie, London) for the employers in the second case; the employee in the second case did not appear and was not represented; Neil Vickery (instructed by Eversheds, London) for the employer in the third case; Paul Troop (instructed by Thompsons) for the employee in the third case; Robin Allen QC and Anna Beale (instructed by the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission) for the interveners.


Held, dismissing the appeal in the first case and allowing the appeals in the second and third cases, that section 63A of the Sex Discrimination Act 1975 and section 54A of the Race Relations Act 1976 required the employment tribunal to go through a two-stage process if the complaint were to be upheld; that when considering at the first stage whether a complainant had proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an act of discrimination against the complainant, the tribunal had to assume that there was no adequate explanation for those facts; that the purpose of the provisions was to shift the burden of proof onto the respondent at the second stage when his explanation would be considered; and that, with the addition of a paragraph to that effect and some other minor corrections, the guidance given by the Employment Appeal Tribunal in Barton v Investec Securities Ltd [2003] ICR 1205 as to the application of the burden of proof provisions was approved.




MEDICAL PRACTITIONER


Doctor found guilty of serious professional misconduct and suspended for six months - Council for the Regulation of Health Care Professionals referring decision as being unduly lenient - High Court having jurisdiction in exceptional cases to review findings of fact made by disciplinary committee

Council for the Regulation of Health Care Professionals v General Medical Council and another: QBD (Mr Justice Richards): 31 January 2005


The professional conduct committee of the General Medical Council found a doctor guilty of serious professional misconduct and suspended him from the medical register for a period of six months.


The Council for the Regulation of Health Care Professionals (CRHCP) referred the case to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002 on the ground that the committee's decision was unduly lenient.


One of the main issues arising was the CRHCP's contention that the committee had been wrong to find a head of one of the charges not proved.


The doctor contended that the court had no jurisdiction to review the committee's findings of fact, and, if it did, it should be slow to interfere with findings of fact and should not interfere in the circumstances of the case.


Robert Jay QC and Kristina Stern (instructed by Bevan Brittan) for the CRHCP; Mark Shaw QC and Jemima Stratford (instructed by Field Fisher Waterhouse) for the General Medical Council; Neil Garnham QC and Giles Colin (instructed by Solicitor, Medical Defence Union) for the doctor.


Held, allowing the appeal, that findings of fact could be attacked only where it was contended that an error in those findings had led to an unduly lenient penalty; that therefore the court had jurisdiction to review the committee's findings of fact on a referral under section 29; that the court would exercise that jurisdiction with appropriate caution and was likely to interfere with underlying findings of fact only in exceptional cases; that the present case was exceptional and the penalty given was unduly lenient; and that, accordingly, the decision of the committee would be quashed and the matter remitted.





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