EDUCATION


Statement of special educational needs - statement amended on tribunal's direction - no right of appeal to tribunal against amended statement

D and another v East Sussex County Council: CA (Dame Elizabeth Butler-Sloss President, Lords Justice Jacob and Hooper): 22 March 2005



The parents of disabled twin daughters, following the annual review of their special educational needs, were not satisfied with the amendments to the special needs statements made by the local education authority on the direction of the Special Educational Needs and Disability Tribunal. Having failed to obtain a review under regulation 37 of the Special Educational Needs Tribunal Regulations 2001, they again appealed to the tribunal, which struck out the appeal as vexatious.


On appeal to the High Court, the judge held that under the legislative scheme, the tribunal had no jurisdiction to hear appeals against statements issued by the local education authority reflecting amendments made pursuant to the tribunal's order. The parents appealed.


John Friel (instructed by Ormerods, Croydon) for the parents; Lisa Busch (instructed by Head of Legal Services, East Sussex County Council, Lewes) for the local education authority; Jonathan Auburn (instructed by the Treasury Solicitor) for the president of the tribunal, as an interested party.


Held, dismissing the appeal, that there was no right of appeal to the tribunal against a special needs statement amended in accordance with its own directions; that, since under regulation 37 of the 2001 regulations it was possible to apply for review if there was fresh material and 'if the interests of justice require', which would encompass matters arising after a tribunal hearing, and since by regulation 51 the time limit of ten days could be extended under 'exceptional circumstances', the provisions enabling such a review to be undertaken seemed to provide an appropriate way of dealing with cases such as the present; and that guidance from the president of the tribunal on what would constitute 'exceptional circumstances' would be helpful to those who used the tribunal.






EMPLOYMENT


Member of armed forces on posting to sovereign base bringing complaint of racial discrimination - employment tribunal deciding employee working wholly or mainly outside Great Britain and dismissing complaint for lack of jurisdiction - tribunal to consider whole period of employment

Saggar v Ministry of Defence: CA (Lords Justice Mummery, Tuckey and Clarke): 27 April 2005


The applicant served as a consultant anaesthetist in the Royal Army Medical Corps and was posted to the Princess Mary Hospital, Royal Air Force Base, Cyprus in a sovereign base area at Akrotiri. He brought a complaint of racial discrimination against the commanding officer, which he alleged occurred during his posting.


The employment tribunal held that, because at the time of the alleged acts the applicant was on a posting in an area which was not part of Great Britain, he was not 'employed at an establishment in Great Britain' for the purposes of section 8 of the Race Relations Act 1976 and dismissed the complaint for lack of jurisdiction. He appealed to the Employment Appeal Tribunal which dismissed his appeal. He appealed to the Court of Appeal.


Robin Allen QC and Paul Epstein (instructed by Scotts Wright, Catterick) for the applicant; Thomas Linden (instructed by the Treasury Solicitor) for the Ministry of Defence.


Held, allowing the appeal, that in deciding for the purposes of entertaining a complaint of racial discrimination whether, under section 8(1) of the Race Relations Act 1976, an employee worked 'wholly or mainly outside Great Britain', the relevant period was not simply the period to which the complaint related, but was the whole period of employment including the earlier history of employment at establishments of the employer in Great Britain; and that, accordingly, since the tribunal had erred in its interpretation of the relevant provision, the case would be remitted for reconsideration of the question of jurisdiction.






JUDICIAL REVIEW


Claimant subject of anti-social behaviour order - order imposing curfew on him - curfew provisions not legally objectionable

R (Lonergan) v Crown Court at Lewes: QBD (Lord Justice Maurice Kay and Mr Justice Moses): 23 March 2005


The claimant was made the subject of an anti-social behaviour order which, among other things, imposed a curfew on him. He sought judicial review on the grounds that a curfew was mandatory rather than prohibitory in nature and could not therefore comply with section 1(4)(6) of the Crime and Disorder Act 1998, and that a curfew was tantamount to a penal sanction and, as such, was incompatible with the classification of anti-social behaviour orders as civil rather than criminal.


Alan Newman QC and Christopher Rodwell (instructed by Tremletts, Brighton) for the claimant; Timothy Otty (instructed by the Treasury Solicitor) for the home secretary as an interested party; the Crown Court and the local authority did not appear and were not represented.


Held, dismissing the claim for judicial review, that, while the 1998 Act required the order to be substantially and not just formally prohibitory, a restraint on leaving or travelling between specified premises during particular times met that test; that a prohibition imposed as part of an anti-social behaviour order had preventative and protective purposes, rather than a purpose of punishment; that because the content and duration of an anti-social behaviour order was conditioned solely by what was necessary for the purposes of protecting members of the public from further anti-social behaviour, the court was not required to consider what sentence would have been imposed whether by way of curfew order, or otherwise, if it had been sentencing the same person for one or more of the same acts which justified the making of an anti-social behaviour order; and that, accordingly, there was nothing legally objectionable in the inclusion of a curfew provision in an anti-social behaviour order if it were necessary for protection.






PLANNING


Enforcement notice - over ten years' continuous use of London residential premises in breach of planning control followed by short period of lawful use - enforcement notice against return to unlawful use valid

Fairstate Ltd v First Secretary of State and another: CA (Lords Justice Ward and Carnwath and Lord Slynn of Hadley): 21 March 2005


Residential premises in London were used, without appropriate planning permission, for more than ten years. There was then a change for five months to lawful occupation, followed by four further years of unlawful use as temporary sleeping accommodation.


The local planning authority issued an enforcement notice. Contesting the validity of the notice by relying on section 171B(3) of the Town and Country Planning Act 1990 (as inserted by section 4 of the Planning and Compensation Act 1991), the landlord, pointing to the ten years' continuous use without planning consent, contended that there was no relevant breach on which the notice could bite. The judge upheld the validity of the notice. The landlord appealed.


Meyric Lewis (instructed by Lyndales, London) for the landlord; Robert Palmer (instructed by the Treasury Solicitor) for the secretary of state; the local planning authority did not appear and was not represented.


Held, dismissing the appeal, that ten years of continuous use of residential premises in London in breach of planning control would, without more, prevent the planning authority from taking enforcement action under section 171 of the 1990 Act; but that a significant break in the continuity of such use, even though occurring after the end of that ten-year period, acted as a trigger which renewed a deemed material change of use under section 25 of the Greater London Council (General Powers) Act 1973, thereby entitling the council to serve a valid enforcement notice.






REVENUE


Excise duty - suspension arrangement - goods fraudulently diverted - warehousekeeper liable for duty

Greenalls Management Ltd v Customs and Excise Commissioners: HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Walker of Gestingthorpe): 12 May 2005


The taxpayer operated a tax warehouse. It released vodka under an excise duty suspension arrangement on the basis that it was going to bonded warehouses in Belgium and Spain. After leaving the warehouse, it was fraudulently diverted.


The company was assessed to excise duty under the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, and the Value Added Tax and Duties Tribunal upheld the assessment.


Mr Justice Jacob allowed the taxpayer's appeal in part, and the Court of Appeal allowed an appeal by the taxpayer and dismissed an appeal by the commissioners. The commissioners appealed.


David Anderson QC and Rupert Baldry (instructed by the Solicitor to the Commissioners of Customs and Excise) for the commissioners; Robert Venables QC and Rory Mullan (instructed by Dorsey & Whitney, London) for the taxpayer.


Held, allowing the appeal, that the excise duty point for the purposes of regulation 5(4) of the 1992 regulations was determined by regulation 4(2)(a), which did not require that the goods should have been made available for consumption by any particular person or from the warehouse or that the warehousekeeper should have been to blame, and under which, accordingly, the vodka had been 'made available for consumption' when it had been diverted so that the taxpayer was liable for the duty. (WLR)






TRADE


Copyright - use of photographs to criticise style of journalism - use not infringement of copyright

Fraser-Woodward Ltd v British Broadcasting Corpn and another: ChD (Mr Justice Mann): 23 March 2005


The claimant brought an action for infringement of copyright in photographs of a well-known footballer, his wife and their children which had been published originally in various tabloid newspapers under licence.


The defendants relied on the defence in section 30(1) of the Copyright, Designs and Patents Act 1988 of fair dealing with a work for the purposes of criticism or review: first there was said to have been criticism and review of the photographs themselves, and, secondly, their use was said to have taken place in the context of criticism or review of other works, namely the tabloid press's coverage of celebrities.


Christina Michalos (instructed by Charles Russell, London) for the claimant; Charlotte May (instructed by Head of Litigation at BBC and Bristows, London) for the defendants.


Held, dismissing the claim, that for the purposes of section 30(1) of the 1988 Act, there had to be sufficient content to amount to criticism but there was no requirement of any particular degree of specificity; that provided that there was fair dealing it did not matter that the use of the work was not necessary; that where the use of the work was for the purposes of criticism or review of another work, that other work had to come within section 1 of the 1988 Act; that the ideas or philosophy underlying a certain type of journalism could be the subject of criticism for the purposes of section 30; and that, in the circumstances, the use of the photographs amounted to fair dealing.