CRIMINAL

Right to fair trial - defendant failing to obtain counsel - no breach of constitutional right to legal representation

Jahree v State of Mauritius: PC (Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell): 28 February 2005



The defendant was charged with possession of counterfeit banknotes. His trial was set to commence on 18 January 2001, but his counsel was otherwise engaged and the trial was postponed until 10 October 2001. On that date, his counsel did not appear and he applied for a further postponement to enable him to instruct different counsel.


The magistrate refused his application and proceeded with the trial, at the conclusion of which she found him guilty. His appeal to the Supreme Court of Mauritius was dismissed and he appealed to the Privy Council, contending that the magistrate's conduct of the trial, including her apparently biased interventions during his cross-examination, infringed his right to a fair trial under section 10 of the Constitution of Mauritius.


Yanilla Moonshiram (of the Mauritius Bar) (instructed by Saunders & Co, London) for the defendant; Rodney Dixon (instructed by Royds, London) for the respondent.


Held, dismissing the appeal, that where a defendant in criminal proceedings was left unrepresented through his own fault, it was not a breach of his constitutional right to legal representation; that it was necessary to consider whether any prejudice suffered by the defendant as a result of the absence of representation was sufficient to give rise to a miscarriage of justice; that it was highly undesirable for a judge to cross-examine an accused person in such a way as to appear to be siding with the prosecution; but that the magistrate's adverse interventions were of less significance in a trial without a jury and did not justify setting aside the verdict (WLR).




Compensation for miscarriage of justice - conditions applicable to claim

R (Murphy) v Secretary of State for the Home Department; R (Lineker Brannan) v Secretary of State for the Home Department: QBD (Mr Justice Richards and Mr Justice Pitchford): 10 February 2005


The claimants claim for compensation under section 133(1) of the Criminal Justice Act 1988 was refused by the Secretary of State for the Home Department on the grounds that the convictions of the first claimant and the second claimant's deceased father had not been reversed on the strength of any new material which might meet the terms of section 133(1).


The convictions had been quashed on a second appeal. The claimants made a claim for compensation to the court.


Keir Starmer QC and Hugh Southey (instructed by Keith Dyson & Co, Manchester, for the first claimant and Stephensons, Wigan, for the second claimant); Philip Sales and Thomas Linden (instructed by the Treasury Solicitor) for the secretary of state.


Held, dismissing the claim, that an individual claiming compensation under section 133(1) could rely on evidence and the resulting finding of fact which related to a matter that was in issue at the trial, but that evidence had to have been discovered since the conclusion of the appeal brought within the ordinary time limit; that, in addition, the newly discovered fact had to be the principal, if not the only, reason for the quashing of the conviction; but that in the claimants' case the new material was disclosed before the hearing of the first appeal brought within the ordinary time limit and was not the principal reason for the quashing of the convictions.






EDUCATION


Religious belief that corporal punishment necessary for upbringing of children - statutory ban on corporal punishment - not interference with right to manifest religious belief

R (Williamson and others) v Secretary of State for Education and Employment: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood): 24 February 2005


The claimants were head teachers and teachers at four independent schools, and parents who sent their children there. The schools were established specifically to provide education based on Christian principles and it was part of their belief that, when appropriate, discipline should be enforced by mild corporal punishment.


The claimants contended that section 548 of the Education Act 1996, as substituted by section 131 of the Schools Standards and Framework Act 1998 which prohibited corporal punishment in all schools, interfered with their freedom to manifest their religious beliefs, contrary to article 9(1) of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998, and to education in conformity with their religious convictions, contrary to article 2 of the first protocol to the convention. They applied for judicial review by way of a declaration that section 548, as substituted, did not prevent a parent delegating to a teacher in an independent school the right to administer corporal punishment.


The judge dismissed the application and the Court of Appeal upheld that decision. The claimants appealed to the House of Lords.


James Dingemans QC and Paul Diamond (instructed by Windsor & Co, London) for the claimants; Jonathan Crow and Hugo Keith (instructed by the Treasury Solicitor) for the secretary of state.


Held, dismissing the appeal, that under article 9(1) there was a difference between freedom to hold a belief and freedom to manifest a belief; that freedom of belief was absolute whereas freedom to manifest belief was qualified; that everyone was entitled to hold beliefs, but when questions of manifestation arose there were threshold requirements of seriousness, coherence and consistency with human dignity; that it could not be said that a mild degree of corporal punishment like a smack violated a child's integrity to such an extent as to take the belief in corporal punishment outside article 9 and article 2 of the first protocol to the convention; that the claimant parents manifested their beliefs in corporal punishment when they placed their children in schools where corporal punishment was practised and when they authorised the school to administer corporal punishment; that therefore article 9 and article 2 of the first protocol to the convention were engaged in respect of the claimant parents; that as to article 9, the claimant teachers' beliefs were ancillary to the parents' beliefs and did not call for separate consideration; that section 548 interfered materially with the parents' rights, but that interference was justified under article 9(2) since the statutory ban pursued the legitimate object of protecting children and promoting their wellbeing; that the legislature was entitled to take the view that balancing the conflicting considerations, all corporal punishment at schools was undesirable and unnecessary and that other non-violent methods of discipline were available; and that, accordingly, section 548 did not violate the claimants' rights under article 9 or article 2 of the first protocol. (WLR)






EQUITY AND SUCCESSION


Imperfect trust - not expressly stated to be for charitable purposes - validation as charitable trust

Ulrich and others v Treasury Solicitor and others: ChD (Mr Justice Hart): 28 January 2005


A trust was set up in 1927 for the benefit of the employees and their dependants of the second defendant company. Although the trust deed did not expressly state an exclusively charitable purpose, the income was applied in cases of hardship. In 1995, the trustees ceased to make payments from the fund, having been advised that the trust was invalid on the ground of perpetuity.


The claimant trustees applied to the court for a declaration that the trust was valid as a charitable trust, by virtue of sections 1 and 2 of the Charitable Trusts (Validation) Act 1954. The first three defendants made no claims to the trust fund and the fourth defendant represented the interests of the beneficiaries.


The purpose of the Act was to restrict to charitable objects certain instruments taking effect before 16 December 1954, which provided 'for property to be held or applied for objects partly but not exclusively charitable'. Under section 1, such provisions constituted 'imperfect trust provisions', the effect of which was to make the whole of the objects charitable. By virtue of section 2, the Act applied to any disposition of property held or applied for objects declared by an imperfect trust provision, where the disposition would be invalid unless the objects were treated as exclusively charitable.


Paul Teverson (instructed by Carter Bells, Kingston upon Thames) for the trustees; Michael King (instructed by Carter Bells, Kingston upon Thames) for the representative.


Held, allowing the claim, that the 1954 Act was not confined in its operation to cases in which a charitable purpose had been expressed in the deed; that to so confine it would impose a gloss on the wording of section 1; that section 1 contemplated a trust provision under which the property could be used exclusively for charitable purposes; that the provision would be valid if no interested parties had any legitimate complaint if the whole were applied for a charitable purpose; and that, since no one had complained of the use of the income for the relief of poverty, the trust could be validated as a charitable trust.






IMMIGRATION


Inclusion of Bangladesh in statutory list - not lawful in view of persecution and human rights abuses

R (Husan) v Secretary of State for the Home Department: QBD (Mr Justice Wilson): 24 February 2005

The claimant, a Bangladesh citizen, sought a declaration that the defendant's addition of Bangladesh to the list of countries included in section 94(4) of the Nationality, Immigration and Asylum Act 2002 was unlawful since, given the material referable to conditions in that country in existence at the time of its inclusion and thereafter, the defendant could not reasonably have been satisfied that there was no general risk of persecution of persons entitled to reside there, or that removal there of such persons would not in general contravene the UK's obligations under the European Convention on Human Rights, as required by section 94(5) of the 2002 Act.


He also sought judicial review of the defendant's decision to certify his asylum claims as clearly unfounded under section 94(2) and (3) of the 2002 Act, thereby depriving him of the facility to appeal to an adjudicator while remaining in the UK.


Al Mustakim (instructed by Legal Department, Oxford House, London) for the claimant; Jennifer Richards (instructed by the Treasury Solicitor) for the defendant.


Held, that the inclusion of Bangladesh in the list was unlawful since it was all too clear from objective reports that persecution and human rights abuses were not isolated problems at the margins of life but existed there on a general state so that no rational decision-maker could have been satisfied of the matters of which by section 94(5) of the 2002 Act he was required to be satisfied; but that since there was no evidence of any high-level, let alone national, interest in the claimant to preclude his safely living elsewhere in Bangladesh than in his home city, there was sufficient foundation for the decision to certify.






JUSTICES


Closure order - jurisdiction to adjourn - limited to exceptional circumstances

Commissioner of Police of the Metropolis v Hooper: QBD (Mr Justice Mitting): 16 February 2005


The police applied for a closure order in respect of the tenants' property on the grounds that the premises had been used in connection with the unlawful dealing in a class A controlled drug. The justices adjourned the hearing of the application three times. The second and third adjournments resulted in the adjourned hearings taking place outside the 14-day time limit specified for adjournment in section 2(6) of the Anti-Social Behaviour Act 2003.


The police appealed against the decisions to adjourn on the second and third occasions on the grounds that the justices were wrong in law and acted outside their jurisdiction.


Claire Watson (instructed by the solicitor, Metropolitan Police) for the commissioner; John Madden (instructed by Kaim Todner, London) for the tenant.


Held, allowing the appeal, that the justices had statutory power to adjourn a closure order under section 2(6) of the 2003 Act, but not so as to extend the period beyond 14 days after the application was made for the closure order; that they also had power to adjourn under section 54 of the Magistrates Court Act 1980 in exceptional circumstances, but the power should not be exercised so as to frustrate the statutory purpose of the 2003 Act and should only be exercised when there was no other way available to avoid a breach of the tenants' convention rights; that the purpose of the 2003 Act involved the ability to act swiftly and decisively, whereas if the power to adjourn under section 54 was used then the power under section 2(7) of the 2003 Act to order the closure notice to continue was not available and the justices would deprive themselves and the police of a valuable weapon through which to carry out the purpose of the 2003 Act; and that since the justices had not taken into account the relevant factors in reaching their decision the decision was flawed.






LOCAL GOVERNMENT


Local authority given zero star rating by Commission for Social Care Inspection - Audit Commission applying its own rule automatically downgrading local authority to category of 'weak' in consequence of that rating - automatic downgrading unlawful

R (Ealing London Borough Council) v Audit Commission for Local Authorities and the National Health Service in England and Wales: QBD (Mr Justice Walker): 17 February 2005


The Local Government Act 2002 imposed a duty on the Audit Commission to report on local authorities and categorise them as to how they performed in exercising their functions.


Following the claimant council being given a zero star rating by the Commission for Social Care Inspection, the Audit Commission, applying a rule from its own published document, categorised the claimant as 'weak' as an automatic consequence following such a zero rating. The claimant claimed judicial review.


Andrew Arden QC and Jonathan Manning (instructed by Eversheds, Leeds) for the claimant; Richard Gordon QC and Maya Lester (instructed by the Solicitor, Audit Commission) for the Audit Commission.


Held, granting the claim, that in applying the rule, the Audit Commission had downgraded the claimant and in determining to do so had refused to apply its own mind to the reasons why the Commission for Social Care Inspection had give a zero star rating and whether those reasons warranted such a dramatic downgrading; that law required that in a case where a finding might be determinative, the Audit Commission should be prepared to apply its own mind to the matter; that section 99 of the 2002 Act did not permit the Audit Commission to adopt a rule which downgraded an authority as an automatic consequence of someone else's decision; and that accordingly, the Audit Commission had acted unlawfully.






PRACTICE


Court of appeal - application to reopen appeal - circumstances in which appropriate to reopen final appeal

In re Uddin (A Child): CA (Dame Elizabeth Butler-Sloss, President, Lords Justice Thorpe and Laws): 24 February 2005


Despite judgment having been given by the Court of Appeal [2004] 3 WLR 753, the mother applied for permission to reopen the appeal and to adduce fresh evidence on the grounds of the principles in Taylor v Lawrence [2003] QB 528 and the provisions of CPR 52.17 which provided: '(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless: (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; (c) there is no effective alternative remedy'.


Peter Jackson QC and Catherine Wood (instructed by Harman & Harman, Canterbury) for the mother; Judith Rowe QC (instructed by Head of Legal Services, Birmingham City Council) for the local authority; Andrew Scott (instructed by Pye-Smiths, Salisbury) for the father; Margaret Hodgson (instructed by Carole Burgher, Birmingham) for the children's guardian.


Held, refusing permission to appeal, that the Taylor v Lawrence jurisdiction could only be properly invoked where it was demonstrated that the integrity of the earlier litigation process, whether at trial or first appeal, had been critically undermined; that in order to entertain a second appeal on fresh evidence grounds it must at least be shown, not merely that the fresh evidence demonstrated a real possibility that an erroneous result had been arrived at in the earlier proceedings, but that there existed a powerful possibility that such a result had in fact been perpetrated; and that, since the integrity of the earlier litigation process had never been critically undermined and it was very far from being a case in which it had been demonstrated that a wrong result had been arrived at, the application to reopen the earlier appeal process was misconceived in principle.




Employment tribunal - tribunal producing extensive extended reasons - format and style to be addressed

Williams v J Walter Thompson Group Ltd: CA (Lords Justice Mummery, Chadwick and Tuckey): 17 February 2004


The claimant, a blind woman, claimed unlawful discrimination on the grounds of disability and constructive unfair dismissal. The employment tribunal allowed her claim. The Employment Appeal Tribunal upheld the employer's appeal. The claimant appealed.


Thomas Kibling (instructed by Russell Jones & Walker, London) for the claimant; Philip Mead (instructed by Hammond Suddards Edge, London) for the employer.


Held, allowing the appeal, that short practical suggestions on the format and style of the employment tribunal's extended reasons were worth making; that although it was always useful to break down a long decision into numbered paragraphs, the use of small roman numerals running up to lxxxiii was not the most user-friendly method available; that the numbering style had occurred in a number of recent tribunal decisions and could lead to unnecessary presentational problems at the oral hearing on the appeal; and that, although tribunals should always make clear findings of facts on all relevant issues and give reasons for their conclusions on disputed questions of fact, it was not normally necessary to rehearse the evidence at length or to include long verbatim quotations from background documents.






PRISONS


Prisoner undergoing disciplinary hearing - breach of right to fair trial - award of damages not required

R (Greenfield) v Secretary of State for the Home Department: HL (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood): 16 February 2005


The prisoner, who was serving a two-year sentence, pleaded not guilty to a charge of administering a controlled drug to himself or failing to prevent the administration of a controlled drug to him by another person, contrary to rule 51(9) of the Prison Rules 1999.


The hearing was conducted before the deputy controller who refused the prisoner's request for legal representation, found the charge proved and ordered the prisoner to serve 21 additional days of imprisonment.


The prisoner applied for judicial review of the deputy controller's decisions, contending that they infringed his right to a fair trial under article 6 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998. The Divisional Court dismissed the application and the Court of Appeal dismissed the prisoner's appeal on the ground that the offence with which he was charged was properly to be categorised as a prison disciplinary offence and not a criminal offence for the purposes of article 6 of the convention.


Following a subsequent decision of the European Court of Human Rights in Ezeh and Connors v United Kingdom (2002) 35 EHRR 691 and (2003) 39 EHRR 1, the secretary of state conceded that the proceedings against the prisoner did involve the determination of a criminal charge within the meaning of article 6, that the deputy controller was not an independent tribunal and that the prisoner was wrongly denied legal representation of his own choosing which was available to him. The prisoner claimed damages for violations of article 6.


Richard Clayton QC and Philippa Kaufman (instructed by Howells, Sheffield) for the prisoner; Philip Sales and Sam Grodzinski (instructed by the Treasury Solicitor) for the secretary of state.


Held, that it was to the European Court of Human Rights that British courts must look for guidance when deciding under section 8 of the 1998 Act whether to award damages for violations of article 6; that in the majority of cases where that court had found a violation of article 6 it had treated that finding as, in itself, just satisfaction for the injured party; that it would only award monetary compensation where it was satisfied that the loss or damage complained of was actually caused by the violation, and had repeatedly stressed that it would not speculate on what the outcome of the proceedings would have been but for the violation; that awards of damages for anxiety and frustration were made very sparingly and the sums awarded were noteworthy for their modesty; that in the present case, the prisoner had been vindicated by a finding in his favour at the highest judicial level based on a public concession by the secretary of state, so that it would on its face appear to be pre-eminently a case where the finding in the prisoner's favour afforded just satisfaction and no award of damages was necessary; that, although the deputy controller lacked the independence and impartiality required for the adjudication, he had conducted the hearing in an exemplary manner and it was inappropriate to speculate whether a legal representative might have persuaded the deputy controller or another tribunal to take a different view; that although the prisoner could have suffered anxiety and frustration on the basis that he did not think the charges against him would be fairly tried by the prison authorities, a hearing before a governor or deputy governor was the norm at the time of the adjudication so that the prisoner had no expectation of any other procedure and was treated no differently from any other prisoner; and that, accordingly, there would be no award of damages. (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