CRIMINAL

Confiscation orders - postponed determinations - procedural impropriety - statutory interpretation - time limits - validity of confiscation order made more than six months from date of conviction

R v (1) Kamlesh Kumar Soneji (2) David Bullen: HL (Lord Steyn, Lord Rodger of Earlsferry, Lord Cullen of Whitekirk, Lord Carswell, Lord Brown of Eaton-under-Heywood): 21 July 2005



Non-compliance with the terms of section 72A(3) of the Criminal Justice Act 1988 did not deprive the court of its duty to consider the making of a confiscation order.


The Crown appealed against a decision ((2003) EWCA Crim 1765; (2004) 1 Cr App R (S) 34) quashing confiscation orders that had been imposed on the respondents (S) following their pleas of guilty to an offence of conspiracy to convert property and to remove it from the jurisdiction knowing or suspecting that it represented the proceeds of criminal conduct. The Court of Appeal had quashed the confiscation orders on the basis that they had been made more than six months beyond the date of conviction, contrary to section 72A(3) of the Criminal Justice Act 1988.



The Court of Appeal had certified two points of law of general public importance. The first was whether the court's common law jurisdiction to adjourn confiscation proceedings was subject to a mandatory time limit of six months from the date of conviction, save where 'exceptional circumstances' were present. The second was whether, once the court had assumed jurisdiction under section 71 of the Act, its jurisdiction thereafter was extinguished by a failure to comply with the provisions of section 72A of the Act or any common law requirements relating to the postponement or adjournment of the proceedings. S submitted that a strict approach to the construction of section 72A of the Act should be adopted; a purposive approach would render wholly ineffective the parliamentary intent of providing for a specific time limit; injustice had been caused by the delay of the confiscation procedures.


David Perry, David Wallbank (instructed by the Solicitor for Revenue and Customs) for the appellant; Nicholas Valios, Christopher Meredith (instructed by Stanley Tee, Bishop's Stortford) for the respondents.


Held, the approach of the Court of Appeal, in finding that the judge's failure to consider or make a finding of 'exceptional circumstances' deprived the court of jurisdiction to make a confiscation order, had been incorrect. When interpreting statutory provisions, the approach of distinguishing between mandatory requirements and directory requirements should not be applied as it served to deflect attention from the real issue of whether an act done in breach of the legislative provision was invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered). The question concerned the process of making confiscation orders and not the definition of crimes, so that the context required a purposive interpretation of the language of the provision and the scope and object of the whole statute. Emphasis ought to be on the consequences of non-compliance (Nina T H Wang v Inland Revenue Commissioner [1994] 1 WLR 1286 and Attorney-General's Reference No 3 of 1999 (2001) 1 Cr App R 475, applied).


Parliament's intention of a specific time limit would not be rendered ineffective. Where necessary, the courts could vindicate the scheme adopted by Parliament by the abuse of process jurisdiction.


The argument of prejudice was overstated and there had been no significant prejudice. Approximately six months of the two-year delay were due to the need for the court to resolve points, raised by S, about jurisdiction to make the orders. There had been no suggestion of the Crown or court authorities acting in bad faith. The potential prejudice was decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape conviction for what were no more than bona fide errors in the judicial process.


There was no common law jurisdiction to adjourn confiscation proceedings. The possibility of co-existing powers was ruled out by section 72A(3) of the Act.


The requirement of 'exceptional circumstances' in section 72A(3), when looked at in the present context, should not be interpreted too narrowly. The court must comply with the six-month requirement wherever possible, but, for example, listing difficulties could amount to 'exceptional circumstances'. Appeals allowed.





FAMILY


Children - divorce - enforcement - foreign judgments - jurisdiction - scope of submission to jurisdiction of foreign court in divorce proceedings - submission to jurisdiction - Texas family code - Texan court - interference with possessory interest in child

Lawrence Robert Whyte v Marsha Whyte: CA (Civ Div) (Lords Justice Buxton, Neuberger and Thorpe): 21 July 2005


The principle that, where a party had submitted to the jurisdiction of a foreign court, that court had jurisdiction to decide issues raised by the proceedings in which the submission had been made, was particularly apt for application in the family jurisdiction where proceedings might affect a wide range of the aspects of the parties' lives.


Where a mother had submitted to the jurisdiction of the Texan court in divorce proceedings, that court also had jurisdiction in respect of a damages claim against her for 'interference with possessory interest in child', since the claims were directly concerned with the same subject-matter and were therefore within the scope of the submission.


The appellant father (F) appealed against an order that the UK court had no jurisdiction to try F's claim against the respondent mother (M) to enforce in the UK a judgment of the District Court of Harris County, Texas.


F and M had obtained a final divorce decree from the Texan court that had appointed the parties as 'joint managing conservators' of their daughter but had granted F 'primary physical residence' in Texas. The decree had been made with the agreement of, and submission to the jurisdiction of, both parties.


The decree contained an express provision prohibiting either parent from taking the daughter to a country not party to the Hague Convention and sanctions for breach of its terms including a provision that a party violating its terms would be liable for the costs and fees incurred by the other as a result of the non-compliance.


During one of the periods of her agreed custody, M had taken the daughter to Russia in breach of the decree and had refused to return her. F had gone to Russia and had seized his daughter and returned to Texas with her. F had then brought proceedings in Texas against M, not under the penal provisions of the decree but under chapter 42 of the Texas Family Code, and obtained a judgment for damages for 'interference with possessory interest in child'. M took no part in those proceedings.


F sought to enforce that judgment in the UK. M submitted that no proceedings to enforce the Texan judgment could be brought in the UK because she had not submitted, and was not to be taken as having submitted, to the jurisdiction of the Texan court in respect of F's claim under chapter 42.


Allen Dyer (instructed by Judge Sykes Frixou) for the appellant; M Smith (instructed by Stitt & Co) for the respondent.


Held, the UK court had jurisdiction to entertain a claim against M based on the judgment of the Texan Court under chapter 42 of the Texas Family Code. Where a party had submitted to the jurisdiction of the foreign court, that court had jurisdiction to decide issues raised by the proceedings in which the submission had been made (Murthy v Sivasjothi [1999] 1 WLR 467, applied). Different and unrelated claims were not within the scope of the submission, but claims which were directly concerned with the same subject-matter were within its scope. The daughter could be said to be the subject-matter of the divorce proceedings and the damages action. It did not matter that F had proceeded under chapter 42 rather than confine himself to the recourse provided under the decree itself. Chapter 42 was part of the Texas Family Code and was an inherent part of the protection to be provided to families whose affairs were regulated by the Texan courts. It was quite impossible to say that M had not submitted to that regime when she had submitted to the divorce decree. The proceedings were remitted to the Queen's Bench Division. Appeal allowed.





HUMAN RIGHTS


Administration of justice - human rights - coroners - inquests - right to life - resumption of inquest

Commissioner of Police for the Metropolis v Christine Hurst: CA (Civ Div) (Lords Justice Buxton and Sedley, Sir Martin Nourse): 21 July 2005


An inquest would be resumed where there were very strong reasons of public policy, as well as reasons relating to the UK's obligations under the European Convention on Human Rights, why an enquiry into a death should take place as required by article 2. No unfairness would be caused to any individual by the holding of such an enquiry and there was every reason for giving section 3 of the Human Rights Act 1998 a limited retrospective application in order to bring about the resumption of the inquest.


The appellant police commissioner (P) appealed against a decision ((2003) EWHC 1721 (QB)) that an inquest into the death of the son of the respondent (H) should be resumed. H's son had been killed in a stabbing attack. An inquest into the death was opened, but was immediately adjourned under section 16(1) of the Coroners Act 1988 because the perpetrator had been charged with murder. He was subsequently convicted of manslaughter and the coroner decided that there was insufficient cause to reopen the inquest under section 16(3) of the 1988 Act. H sought judicial review to reopen the inquest to consider whether there had been a lack of care by the authorities, including P.


The divisional court found that the duty under article 2 of the European Convention on Human Rights to investigate unexplained deaths applied to the coroner's exercise of his statutory discretion whether to reopen the inquest, even though the death had occurred before the coming into force of the Human Rights Act 1998, and that the authorities had failed to fulfil their investigative duties under article 2. The coroner was directed to resume the inquest. However, before that step was put in hand, the House of Lords delivered judgment in Re McKerr, [2004] 1 WLR 807, finding that the duty under article 2 only applied to deaths occurring after commencement of the 1998 Act, that the 1998 Act was not retrospective and that the divisional court had fallen into error by finding a duty of investigation in respect of a death that occurred prior to the commencement of the 1998 Act.


H submitted that even if, because of the date of death, the coroner was to be regarded as exercising a discretion governed purely by domestic law without regard to the 1998 Act, that discretion had to be illuminated by, and exercised in the light of, the UK's international obligations under the convention; section 11(5)(b)(ii) of the 1988 Act had been authoritatively interpreted by the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, as placing a wide obligation on the coroner to investigate allegations of lack of care; section 3(2) of the 1998 Act applied to the 1988 Act and, in that context, section 3 should be read as operating 'retrospectively' in the sense that the coroner's duty set out in the 1988 Act should be interpreted compatibly with article 2 even where, following the decision in McKerr, the death to which that duty related was not covered by the provisions of the convention.


Anne Studd (instructed by the Force Solicitor) for the appellant; Keir Starmer QC, Stephen Cragg (instructed by Bhatt Murphy, London) for the respondent.


Held, prior to the 1998 Act coming into operation, it had been decided that enquiry at an inquest was limited to events having a clear and direct causal connection with the death, which would only rarely encompass cases of lack of vigilance as alleged in the instant case (R v North Humberside and Scunthorpe Coroner, ex parte Jamieson [1995] 1 WLR 31, considered). The binding authority of Jamieson could not be displaced by resort to subsequent jurisprudence of the European Court of Human Rights. However, even before the 1998 Act the coroner, when exercising his discretion whether to resume an inquest under section 16(3) of the 1988 Act, had to take into account the UK's international obligations under the 1998 Act. It had not been open to the coroner in the instant case in terms of rationality as a matter of English domestic law to conclude otherwise than that the article 2 obligation required the resumption of the inquest.


It was clear from the judgment in R (on the application of Middleton) v Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, that it was not intended to affect the position in pre 1998 Act cases. It was not possible to rely on the fact that section 3 was used in Middleton to put a particular construction on section 11 of the 1988 Act to assert that Middleton was authority for the application of the section 3 reading of section 11 in every case (Middleton explained).


It was clear from Wilson v Secretary of State for Trade and Industry [2003] UKHL 40; [2003] 3 WLR 568, that the House of Lords did not hold that in no case could section 3 be applied to circumstances existing before the implementation of the 1998 Act (Wilson considered). In the instant case, there were very strong reasons of public policy, as well as reasons relating to the UK's obligations under the convention, why an enquiry of the kind mandated in article 2 should take place. No unfairness would be caused to any individual by the holding of such an enquiry and there was every reason for giving section 3 a limited retrospective application in order to bring about the resumption of the inquest. There was no sign of any view in McKerr that investigation of deaths occurring before the 1998 Act came into force was necessarily to be avoided. Parliament, in formulating section 3, deliberately took what the speeches in McKerr confirm to have been a much more expansive view, by imposing on the courts an obligation to give effect to the UK's international obligations, and not merely to its domestic obligations as created by the 1998 Act (Re McKerr [2004] UKHL 12; [2004] 1 WLR 807, considered). By the operation of section 3 of the 1998 Act, section 11(5)(b)(ii) of the 1988 Act was to be read and given effect in a way that was compatible with the UK's international duty under article 2 of the convention. The reading of section 11 this produced was that formulated by Lord Bingham in Middleton. Therefore, the inquest in the instant case should be resumed (Pearson v HM Coroner for Inner London North [2005] EWHC 833 (Admin), distinguished). Appeal dismissed.





PLANNING


Caravan sites - material considerations - planning inspectors - planning permission - unauthorised caravan sites - gypsies - fear of crime

N Smith v (1) First Secretary of State (2) Mid-Bedfordshire District Council: CA (Civ Div) (Lords Justice Buxton and Sedley, Mr Justice Rimer): 21 July 2005


The judge had erred in concluding that a planning inspector had set out his reasoning in clear and adequate detail in refusing to grant planning permission for a gypsy caravan park. The inspector was not entitled to take into account fears and concerns of crime as a material consideration where those concerns rested not wholly on extrapolation from past events, but on an assumption not supported by evidence as to the characteristics of the future occupiers.



The appellant (S) appealed against a decision refusing to quash a decision of a planning inspector appointed by the first respondent secretary of state, who upheld the decision of the second respondent local authority to refuse permission for a gypsy caravan park at a site.


The local authority had served enforcement notices requiring S to discontinue the use of the site for stationing caravans. Stop notices were also served to stop various works on the site. The inspector upheld the enforcement notice and concluded, among other things, that the needs of the residents on the site were outweighed by the serious harm that the use of the site as a gypsy caravan park would cause.


The inspector took into account evidence of increased crime since the caravan park was set up, and fears that such crime would continue, as a material consideration. The inspector found that there had been a history of movement from authorised to unauthorised caravan sites and that there was a danger that a grant of planning permission would undermine government policy to direct gypsy caravans to authorised sites. The inspector further found that the use of the site created undue competition for local work and potential conflicts between gypsy communities.



The judge was satisfied that the inspector had set out his reasoning in clear and adequate detail. S submitted that the inspector had erred in relation to the issues about fear of crime, the shift from authorised to unauthorised sites and the competition for local work.


Marc Willers (instructed by South West Law, Bristol) for the appellant; Andrew Sharland (instructed by the Treasury Solicitor) for the first respondent; Eian Caws (instructed by the local authority solicitor) for the second respondent.


Held, fear and concern had to have some reasonable basis, and the object of that fear and concern had to be the use, in planning terms, of the land (West Midlands Probation Committee v Secretary of State for the Environment Independent, November 13, 1997, applied).


In the instant case, the number of incidents of crime reported had diminished. Further, it was necessary in order to take those incidents into account to attribute them not merely to the individuals concerned but also to the use of the land. However, a caravan site was not like a polluting factory or a bail hostel, likely of its nature to produce difficulties for its neighbours. It could not be right to view the use of the land as a gypsy site as inherently creating the real concern that attached to an institution such as a bail hostel. If the concern for the future rested not wholly on extrapolation from past events, but at least partly on an assumption not supported by evidence as to the characteristics of the future occupiers then, in accordance with the guidance contained in West Midlands, it could not be taken into account.


If those points had been put to the judge, he would have held that the evidence before the inspector did not suffice to establish real concern of the kind that the authorities required before that concern could enter the planning judgment.


There was a possibility that the grant of planning permission would undermine government policy to direct gypsy caravans to authorised sites. However, that argument needed to be made in much more detailed and expositive terms than were adopted in the inspector's decision.



The fundamental objection to the issue of competition had not been put to the judge, who was invited merely to reconsider the factual position as to work-habits of the potential inhabitations of the local area. The inspector had relied on considerations that were not properly open to him. S's application should be remitted to the secretary of state for reconsideration. Appeal allowed.