CRIMINAL


Sexual offences - evidence of complainant's sexual history - judge having no discretion to exclude relevant evidence meeting statutory criteria

R v F (Complainant's sexual history): CA (Lord Justice Judge, Mr Justice Curtis and Mr Justice McCombe): 3 March 2005



The defendant was charged with specimen counts of rape and indecency with a child. The complainant alleged that she had been subjected to systematic sexual abuse and repeatedly raped by the defendant, her stepfather, from 1979, when she was seven years old, until 1988 when she was 16, but she did not make a complaint until 2002.


Between 1991 and 1995, the complainant and the defendant lived together and shared a full consensual sexual relationship but the prosecution alleged that her behaviour was consequential on 'grooming' by the defendant.


The defendant asserted that her complaints were false and were motivated by a desire for revenge after he had brought the relationship to an end. The trial judge considered section 41 of the Youth Justice and Criminal Evidence Act 1999 and concluded that the fact of the adult relationship could be adduced before the jury but he refused to allow evidence to be adduced about some photographs and two videotapes taken by the defendant and showing the complainant stripping and appearing to be happy. The defendant, having been convicted, appealed.


Sir Jonah Walker-Smith (instructed by Bray & Bray, Leicester) for the defendant; Robert Brown (instructed by the Crown Prosecution Service, Leicester) for the Crown.


Held, allowing the appeal, that although it was sometimes loosely suggested that the operation of section 41 involved the exercise of judicial discretion, in reality the judge was making a judgment whether to admit or refuse to admit evidence which was relevant; that if the evidence was not relevant, on elementary principles it was not admissible, but if it was relevant then, subject to section 41(4), and assuming that the criteria for admitting the evidence were established, the court lacked any discretion to refuse to admit it, or to limit relevant evidence which was properly admissible.




Defendant assaulting dock officer after trial and refusing to obey order to attend court for sentencing - no need to act immediately - judge entitled to deal with matters by way of contempt of court and to adjourn hearing rather than proceeding summarily

R v Santiago: CA (Lord Justice Hooper, Mr Justice Silber and Judge David Paget QC): 8 March 2005


At the end of his trial for drugs offences, the defendant assaulted a dock officer and later refused to obey the judge's order to leave his cell and attend court to be sentenced. Seven days later the judge found the defendant guilty of two contempts of court and sentenced him to five months' imprisonment for the first and one month's imprisonment consecutively for the second.


The defendant appealed on the ground that, since the power to punish contempt could only be used sparingly and when it was imperative for the court to act immediately to ensure that a trial continued without disruption, the judge had erred in hearing the contempt proceedings and should have left the assault incident to the Crown Prosecution Service to bring proceedings.


David Lyons and Helen Khan (assigned by the Registrar of Criminal Appeals) for the defendant; Martin Beddoe (instructed by the Crown Prosecution Service, Cambridgeshire) for the Crown.


Held, dismissing the appeal against conviction but allowing in part the appeal against sentence, that a judge was entitled to defer taking action on a prima facie contempt and could adjourn it until later, even though the trial was over and there was no immediate need to act, and should not take action immediately if it would be unfair to the defendant; that it would have been disproportionate to leave the matter to the Crown Prosecution Service to prosecute, certainly where there was no dispute about the facts; that urgency was material not to the existence of the jurisdiction but to whether it should be exercised in preference to a more measured form of process; that disobedience of a judge's lawful order to attend for sentence was an interference with the administration of justice and, therefore, constituted a contempt; and that, since it was doubtful whether the judge should have exercised his power to sentence the defendant for contempt where he had refused to attend his sentence, the sentences would be ordered to run concurrently.





ECCLESIASTICAL


Exhumation - exclusive rights of burial - convention rights diminishing consistory court's controlling discretion

In re West Norwood Cemetery: Southwark Const Ct (George QC Ch): 24 February 2005


Following the wife's death, her ashes were split. Half were buried in plot 177 and half were scattered. Her husband, children and brother shared the costs of the burial between them. P, the second son, became the registered owner of the exclusive rights of burial in plot 177. P made it clear to his siblings that he did not want his father buried in the plot.


After the husband's death, five of the children arranged for the burial of his ashes in plot 177 in all likelihood by forging their brother's signature on the burial form. On discovering this, the burial authority, at the request of P, petitioned to exhume the deceased's remains.


Dr Joanna Kerr (instructed by the solicitor, Lambeth London Borough Council) for the burial authority; the parties opponent in person.


Held, dismissing the petition, that if P were the owner of exclusive burial rights in plot 177, those rights were protected by article 1 of the first protocol to the European Convention on Human Rights, with the result that the controlling discretion of the consistory court would be much, if not entirely, diminished; that, in those circumstances, there would be either a right to exhumation or compelling reasons would be required to refuse to permit it; but that the grant to P of exclusive burial rights was not definitive of those rights since, on the facts, a constructive trust had been established from the common intention of those who had contributed to the cost of acquiring the rights that the husband's ashes should be buried in plot 177; that P therefore had no right to refuse consent to the burial; that the same result was achieved by the law of proprietary estoppel and P was estopped from denying the right for the husband's ashes to be interred in plot 177; that the interment of the husband's ashes had not therefore interfered with P's property rights whether at common law or under the convention; and that the court was entitled to take into account P's unconscionable conduct in the case in concluding that it was not an appropriate case for exhumation.





EVIDENCE


Expert's report - legal professional privilege - party not requiring permission to replace expert witness

Hajigeorgiou v Vasilou: CA (Lords Justice Brooke, Dyson and Gage): 10 March 2005


In the course of landlord and tenant litigation, the parties were granted permission by the court under rule 35.4 of the Civil Procedure Rules 1998 to instruct 'one expert each in the specialisation of restaurant valuation'. The landlord instructed W but, being dissatisfied with his report, subsequently obtained a second report from another expert, N.


The judge, having upheld the tenant's challenge to the admissibility of that second report on grounds that the landlord required permission to substitute it, nevertheless, relying on Beck v Ministry of Defence [2003] EWCA Civ 1043, gave permission to the landlord to rely on N's evidence but on the condition that W's report was disclosed to the tenant. The landlord appealed.


Ivan Clarke (instructed by CP Christou, London) for the landlord; the tenant in person.


Held, allowing the appeal, that an order under CPR rule 35.4(3), giving permission to put in evidence a report of an unnamed expert witness 'in the field identified', entitled a party who had rejected his first expert's report to instruct another without seeking permission from the court; that the landlord had not therefore required permission to adduce N's evidence and so the judge had had no discretion to impose the condition; but that, had such permission been required, a condition for disclosure of the original report could properly have been imposed and would not have breached legal professional privilege. (WLR)





PRACTICE


Enforcement of judgment - charging order expressed in foreign currency - court's discretion to restate in UK currency

Carnegie v Giessen and others: CA (Lords Justice Ward, Dyson and Carnwath: 1 March 2005


In 2002, the claimant obtained judgment for $1.4 million against the defendants. In 2003, to effect enforcement, he obtained charging orders expressed in US currency over the defendants' property. In October 2003 the claimant, contending there was a mistake that could be corrected under the slip rule, applied for the property to be sold and for the debt to be restated in sterling. The judge refused to alter the terms of the charging orders. The claimant appealed.


Amanda Tipples (instructed by Speechly Bircham, London) for the claimant; Richard Mawrey QC and Jonathan Steinert (instructed by Girlings, Ashford) for the defendants.


Held, dismissing the appeal, that there was no mandatory rule nor anything in the Charging Orders Act 1979 preventing a charging order being expressed in a foreign currency, being the currency in which the parties had chosen to deal; that where it only later became evident that currency fluctuations disadvantaged the claimant, the court had a discretion as to whether to restate the debt in another currency; that the claimant was not assisted by the House of Lords' judgment in Miliangos v George Frank (Textiles) Ltd [1976] AC 443; and that, accordingly, the judge was entitled to refuse to interfere with the terms in which the orders were expressed.




Limitation - proceedings for adjudication - no time limit even after expiry of limitation period

Connex South Eastern Ltd v MJ Building Services Group plc: CA (Lords Justice Ward, Dyson and Carnwath): 1 March 2005


The defendant initiated adjudication proceedings under the Housing Grants, Construction and Regeneration Act 1996 against the claimant relating to a contract for installing closed- circuit television screens.


On the claimant's application to the judge for various declarations, relying on section 108 of the 1996 Act, it sought to have the adjudication struck out, contending that it was an abuse of process for the proceedings to be brought so long after the defendant had purported in November 2002 to accept a repudiation of the contract by the claimant. The judge, among other things, refused the declaration sought. The claimant appealed.


David Ashton (instructed by Courts & Co, London) for the claimant; Anthony Speaight QC (instructed by Fenwick Elliott, London) for the defendant.


Held, dismissing the appeal, that section 108 of the Housing Grants, Construction and Regeneration Act 1996 conferred the right on a party to a contract to refer it to adjudication by giving notice 'at any time' of his intention to do so; that those words had to bear their literal and ordinary meaning; and that, accordingly, there was no limit on the time within which a party was entitled to bring a dispute to adjudication, even after the expiry of the limitation period.




Tax appeal to two special commissioners - commissioner dying before appeal determined - consent of parties not required for appeal to continue before replacement commissioner

R (Hitch) v Oliver and others: QBD (Mr Justice Evans-Lombe): 4 March 2005


The claimant appealed to the special commissioners against assessments to tax. Two special commissioners heard the appeal and decided a preliminary issue in favour of the Inland Revenue. That decision was appealed.


The appellate court remitted the matter to the commissioners to deal with in accordance with the court's judgment. Since one of the commissioners who had heard the preliminary issue had died, a replacement was nominated to hear the remitted appeal with the surviving commissioner.


The claimant submitted that, under section 45(3) of the Management of Taxes Act 1970, unless the parties to the proceedings had given their consent, the existing appeal proceedings had to be discarded and the appeal heard de novo by new commissioners.


The commissioners rejected that submission and held that they were bound to deal with the appeals as a continuing matter. The claimant sought judicial review of that decision.


Leolin Price QC, Penelope Reed and John Smart (instructed by Gregory Rowcliffe Milners, London) for the claimant; David Ewart (instructed by the solicitor, Inland Revenue) for the interested parties; the special commissioners did not appear and were not represented.


Held, dismissing the claim, that at common law another special commissioner could take over and continue a tax appeal in replacement of a commissioner who had died; that whether it was necessary to hear the appeal de novo was a matter of case management rather than one of jurisdiction; that section 45 was an enabling provision which was not intended to affect the jurisdiction of commissioners to continue with appeals because of incapacity mid case; and that, accordingly, section 45(3) of the 1970 Act did not require the consent of the parties before the hearing could continue in front of a reconstituted panel of commissioners.





REVENUE


Value added tax - dispute referred to European court - taxpayer not entitled to interim payment pending decision

R (Teleos plc) v Customs and Excise Commissioners: CA (Lords Justice Ward and Dyson and Mr Justice Bennett): 2 March 2005


The taxpayer's VAT dispute concerning his entitlement for supplies to be zero-rated was referred to the European Court of Justice (ECJ). His application for interim relief under CPR rule 25 pending the outcome of the case, relating to his VAT input credits, was rejected.


A judge, in proceedings for judicial review brought by the taxpayer, rejected his case, refusing to make an order for interim payment. The taxpayer appealed.


Andrew Young (instructed by Dass Solicitors, Birmingham) for the taxpayer; Rupert Anderson QC, Rebecca Haynes and Mario Angiolini (instructed by the solicitor, Customs and Excise) for the commissioners.


Held, dismissing the appeal, that a mechanism existed to ensure that proportionate decisions were made by the commissioners in relation to claims by taxpayers for interim payments pending the outcome of disputes; that the fact that proceedings involved the application of Community law, the outcome of which awaited decision by the ECJ, only entitled the taxpayer to such payments under CPR rule 25 (interim remedies) if he had satisfied the conditions specified in rule 25.7; and that, accordingly, the taxpayer's admission that he had not satisfied those conditions, together with his decision not to appeal the judge's rejection of his public law challenge, required the judge's decision to refuse to order the commissioners to make an interim payment to be upheld.





TAXATION


Construction industry - sub-contractor consistently late in making monthly tax payments to Inland Revenue - failures not 'minor or technical' and inspector entitled to refuse renewal of exempting certificate

Arnold (Inspector of Taxes) v G Con Ltd: ChD (Mr Justice Mann): 4 March 2005


The sub-contractor's application for renewal of a certificate exempting it from having payments made to it from contractors after deduction of tax, under section 561 of the Income and Corporation Taxes Act 1988, was rejected by the tax inspector on the grounds that the sub-contractor had failed for several months to comply with the requirements in section 565 of the Act, having been consistently late in submitting to the Inland Revenue monthly tax and national insurance payments in amounts varying from £4,500 to £11,000.


General commissioners upheld the sub-contractor's appeal and renewed its certificate on the grounds that the lapses were merely 'minor or technical' within the excepting provisions in section 565(4) of the Act. The inspector appealed.


Eamon McNicholas (instructed by the solicitor, Inland Revenue) for the inspector; the sub-contractor appeared by a director, in person.


Held, allowing the appeal, the conditions to be satisfied for the grant or renewal of an exemption certificate were set out in section 565 of the 1988 Act but provided an exception for any failures that were 'minor or technical'; that that phrase was not defined in the Act but was not a term of art, the matter being ultimately one of first impression; and that it was clear that the borderline had been crossed by the sub-contractor and thus, applying a qualitative assessment of its failures, together with the principles laid down in Edwards v Bairstow [1956] AC 14, the commissioners' decision was flawed.





PROFESSIONS


Being concerned in arrangement regarding criminal property - claimant's solicitor suspecting defendant's accounts containing false information - statutory provisions not affecting ordinary conduct of litigation by legal professionals so no obligation to seek NCIS consent

Bowman v Fels (General Council of the Bar and others intervening): CA (Lords Justice Brooke, Mance and Dyson):

8 March 2005


The parties to civil proceedings in the county court exchanged financial details. The claimant's solicitors, suspecting that the defendant's business accounts contained false information, notified the National Criminal Intelligence Service (NCIS) pursuant to their understanding of the relevant provisions of the Proceeds of Crime Act 2002, in particular section 328, which created an offence in the case of certain 'arrangements'.


The solicitors were informed of possible delay in obtaining the requisite consent from NCIS and obtained an adjournment of the trial.


On the defendant's appeal, the judge held that there was no reason why the claimant's solicitors could not have disclosed to the court, and the defendant's solicitors, the reason for seeking such an adjournment, or why they could not have continued to bring the matter to trial. The claimant appealed.


Milan Dulovic (instructed by Levine Mellins Klarfeld, Stanmore) for the claimant; James Copley (instructed by Male & Wagland, St Albans) for the defendant; Anthony Boswood QC, Roger Masefield and Jonathan Ashley Norman (assigned by the Bar Pro Bono Unit) for the General Council of the Bar, intervening; Nicholas Elliott QC and Danny Friedman (instructed by the solicitor, Law Society) for the Law Society, intervening; David Pannick QC and Marcus Thompson (instructed by NCIS) for NCIS, intervening.


Held, dismissing the appeal, that on a true construction section 328 of the 2002 Act did not cover or affect the ordinary conduct of litigation by legal professionals, which included any step taken by them in litigation from the issue of proceedings and the securing of injunctive relief or a freezing order up to its final disposal by judgment; and that Parliament could not have intended that proceedings or steps taken by a lawyer in order to determine or secure legal rights and remedies for his clients should involve him becoming concerned in an arrangement which he knew or suspected facilitated the acquisition, retention, use or control of criminal property. (WLR)