CRIME

International law - aggravated trespass - crime of aggression - criminal damage - customary law - defences - demonstrators - justiciability - offences - prerogative powers - reasonable force - war

R v Jones; R v Milling; R v Olditch; R v Pritchard; R v Richards; Ayliffe & ors v Director of Public Prosecutions; Swain v Director of Public Prosecutions: HL (Lords Bingham of Cornhill, Hoffmann, Rodger of Earlsferry, Carswell, Mance): 29 March 2006



In joined proceedings, the court was required to determine questions that had been certified as being of general public importance in cases concerned with the legal justification of acts that would otherwise be criminal offences ([2004] EWCA Crim 1981, [2005] QB 529 and [2005] EWHC 684, [2005] 3 WLR 628).


The appellants (X) had all been charged with or convicted of aggravated trespass or criminal damage arising out of their separate, independent actions taken at military bases by way of protest against the war in Iraq. X had claimed that they were entitled to rely on section 3 of the Criminal Law Act 1967, as they were using reasonable force to prevent the commission of a crime, or that their acts of disruption were not aggravated trespass because the activities of the Crown at the bases were not lawful within the meaning of section 68(2) of the Criminal Justice and Public Order Act 1994, since they were being carried out in pursuance of a crime of aggression under customary international law.


The questions certified were whether the crime of aggression was capable of being a 'crime' within the meaning of section 3 of the 1967 Act and, if so, whether the issue was justiciable in a criminal trial, and whether the crime of aggression was capable of being an 'offence' within section 68(2) of the 1994 Act and, if so, whether the issue was justiciable in a criminal trial.


X contended that customary international law was, without the need for any domestic statute or judicial decision, part of the domestic law of England and Wales; at all times relevant to the instant appeals customary international law recognised a crime of aggression; crimes recognised in international customary law were, without the need for any domestic statute or judicial decision, recognised and enforced by the domestic law of England and Wales; 'crime' in section 3 covered a crime established in customary international law, such as the crime of aggression; alternatively, 'crime' in section 3 meant a crime in the domestic law of England and Wales, and the crime of aggression was such; 'offence' in section 68(2) covered an offence established in customary international law, such as the crime of aggression; alternatively, 'offence' in section 68(2) meant a crime in the domestic law of England and Wales, and the crime of aggression was such.


James Lewis QC, James Hines (instructed by Foresters) for the appellants Jones and Milling; Vaughan Lowe, Alison Macdonald (instructed by Bindman & Partners) for the appellants Olditch and Pritchard; Keir Starmer QC, Nicholas Grief, Hugo Charlton for the appellant Richards; Rabinder Singh QC, James Hines, Charlotte Kilroy for the appellant Ayliffe; Rabinder Singh QC, Charlotte Kilroy for the appellant Swain; Malcolm Shaw QC, Mark Ellison, Sarah Whitehouse (instructed by the Crown Prosecution Service) for the Crown; David Perry, Hugo Keith (instructed by the CPS) for the DPP.


Held, for the purposes of these proceedings, the court accepted that customary international law was, without the need for any domestic statute or judicial decision, part of the domestic law of England and Wales, since the Crown did not challenge that proposition.


Customary international law recognised a crime of aggression and understood it with sufficient clarity to permit the lawful trial of those accused of the crime. It did not lack the certainty of definition required of a criminal offence.


It was at least arguable that war crimes, recognised as such in customary international law, would be triable and punishable under English domestic criminal law. However, war crimes were distinct from the crime of aggression. A crime recognised in customary international law might be assimilated into the domestic criminal law of England and Wales. But the authorities did not support the proposition that that result followed automatically (R v Keyn (Ferdinand) (The Franconia) (1876-77) LR 2 Ex D 63 considered and Hutchinson v Newbury Magistrates Court, Independent, 20 November, 2000 applied).


The focus of the 1967 Act was entirely domestic. It was unlikely that Parliament understood 'crime' in section 3 as covering crimes recognised in customary international law but not assimilated into domestic law by any statute or judicial decision. Therefore, 'crime' in section 3 did not cover a crime established in customary international law, such as the crime of aggression (R (on the application of Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20, [2002] 2 WLR 1315 applied).


It was clear that the crime of aggression was not a crime in the domestic law of England and Wales within the meaning of section 3. The fact that it had not been incorporated by statute was relevant. There existed no power in the courts to create new criminal offences; statute was the only source of new criminal offence (Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 applied). When it was sought to give domestic effect to crimes established in customary international law, the practice was to legislate.


There were no compelling reasons in this case for departing from the democratic principle that it was for Parliament, not the executive or judiciary, to determine what types of conduct attracted criminal penalties. The court would be slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and slow to adjudicate on rights arising out of transactions entered into between sovereign states on the plane of international law.


'Offence' in section 68(2) must be understood as meaning an offence under the domestic criminal law of the relevant UK jurisdiction.


The crime of aggression was not an 'offence' under section 68(2) for the same reasons that it was not a 'crime' for the purposes of section 3.


Per Lord Hoffmann: the discretionary nature or non-justiciability of the power to wage war was one of the reasons why aggression was not a crime in domestic law. The state entrusted the power to use force only to the armed forces, the police and other similarly trained law enforcement officers.


The right of the citizen to use force on his own initiative was circumscribed, and even more so when the citizen was not defending his own interests but those of third parties. It would set a dangerous precedent if individuals were permitted to use force against military installations simply to give effect to their honestly held views of the legality of action taken by the Crown and the armed forces.


The district judges in the proceedings below would have been entitled to convict even if aggression had been a crime in domestic law, since section 3 only justified the use of reasonable force, and the apprehension by the appellants that the crime of aggression was about to be committed could not have made it reasonable for them to use force to obstruct military activities (Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 and HM Advocate v Zelter (2001) (unreported) considered).


Appeals dismissed.





EDUCATION


Special educational needs and disability tribunal - specialist schools

(1) JR (2) AR v (1) Hampshire County Council (2) Special Educational Needs & Disability Tribunal: QBD (Admin) (Mr Justice McCombe): 24 March 2006


The appellant parents (R) appealed against a decision of the second defendant Special Educational Needs and Disability Tribunal as to the appropriate school to be specified in a statement of special educational needs for their son (J).


J had profound hearing loss and had been made the subject of a statement of special educational needs. The first defendant local education authority (H) took the view that a maintained school was appropriate for J's needs, while R had contended that a non-maintained special school should be specified in the statement.


The cost to H of placing J at the special school was substantially greater than placing him at the maintained school. The maintained school was specified in the statement and R appealed against that specification to the tribunal.


The tribunal ordered that the statement should be amended to provide a requirement that J be taught in good acoustic conditions. However, despite not being satisfied that the maintained school had met any recommended or required standards for pupils with hearing impairments, the tribunal upheld the proposed placement of J at the maintained school on the basis that it was not persuaded that the benefit to J of attending the special school outweighed the considerable extra expense to H.


R submitted that the tribunal could not lawfully uphold its decision to place J at the maintained school when it had not been satisfied that the school had met any recommended or required standards for pupils with hearing impairments, and that such finding was contrary to its finding that the pupil with hearing impairments should be taught in a teaching environment offering good acoustic conditions.


John Friel (instructed by SEN Legal) for the claimant; Paul Greatorex (instructed by the local authority solicitor) for the defendant.


Held, it was clear that J needed to be taught in good acoustic conditions that catered properly for his hearing needs and all the parties had acknowledged that need. In view of the amendment that the tribunal had made to the statement in that respect, the tribunal would have had to be satisfied that the school at which J was to be placed provided the right sort of acoustic conditions.


However, it was clear from the tribunal's conclusions that it had not been satisfied with the acoustic conditions with regard to the maintained school. Accordingly, the tribunal's decision to dismiss R's appeal to the amended statement could not stand and the matter was remitted to a fresh tribunal.


Appeal allowed.





HUMAN RIGHTS


International law - detention - Iraq - lawfulness of detention - right to liberty and security - United Nations resolutions - internment necessary for imperative reasons of security

Hilal Abdul-Razzaq Ali Al-jedda) v Secretary of State for Defence: CA (Civ Div) (Lords Justice Brooke, May, Rix): 29 March 2006


The appellant (C) appealed against a decision ([2005] EWHC 1809 (Admin)), dismissing his application for judicial review of his detention by British forces in Iraq.


C was born in Iraq, but was granted British nationality. In 2004, he was arrested in Baghdad and taken to a detention centre operated by British forces on suspicion of membership of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was detained on the basis that his internment was necessary for imperative reasons of security in Iraq.


C challenged his detention on human rights grounds. However, the court decided that C was not entitled to the protection under schedule 1, article 5 of the Human Rights Act 1998 because his rights under article 5 were qualified by UN Security Council resolution 1546.


The secretary of state, seeking to uphold the decision, argued that the effect of article 103 of the UN charter was that the state's obligations under UNSCR 1546 prevailed over obligations under the European Convention on Human Rights 1950.


C argued that article 103 had no application because UNSCR 1546 had placed no obligation on the UK, and did not apply when two obligations created by the UN charter, namely UNSCR 1546 and human rights provisions in the charter, were in conflict; the 1998 Act created free-standing rights that could not be affected by developments at international level.


Keir Starmer QC, Richard Hermer, Christine Chinkin, Felicity Williams (instructed by Public Interest Lawyers) for the appellant; Christopher Greenwood QC, Philip Sales, Jonathan Swift (instructed by the Treasury Solicitor) for the respondent.


Held, the concept of internment for imperative reasons of security created a high threshold test, and it was available in the ordinary way to a belligerent power both during a war and for up to a year during any period of occupation that followed the end of the war. International law obliged those states that were parties to the fourth Geneva Convention to treat their internees in the humanitarian way prescribed by that convention, and to afford them the rights of review and appeal prescribed by article 78 of the convention.


In the case of Iraq, UNSCR 1511 could be said, by authorising the multinational force to take all necessary measures to contribute to the maintenance of security and stability in Iraq, to have extended the power of internment beyond the original one-year term under the Geneva Convention. UNSCR 1546 gave the multinational force the power to intern people for imperative reasons of security, and that power embraced people of every nationality whose internment was deemed necessary for imperative reasons of security.


Article 103 did not give UNSCR 1546 precedence, insofar as there was a conflict. There was nothing in the UN Charter creating a parallel obligation to give effect to C's human rights, and therefore UNSCR 1546 qualified obligations under human rights conventions insofar as it was in conflict with them.


If for any reason one or more of the articles of the ECHR did not have effect for the time being in relation to the UK, then to that extent they did not create a convention right that could be relied on through the machinery of the 1998 Act. Therefore, C's reliance on sections 6(1) and 7(1) of the 1998 Act was nugatory because there was no breach of any convention right in these circumstances (R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2005] 3 WLR 837 considered).


Appeal dismissed.





EDUCATION


Damages - fatal accident claims - measure of damages - mesothelioma - disregarding benefits accruing to any person from deceased's estate as a result of death - double recovery - termination of service payments - retirement benefits

(1) Harland & Wolff Plc (2) Husbands Ltd v Patricia Lillian McIntyre: CA (Civ Div) (Lords Justice Buxton, Lloyd, Richards): 28 March 2006


The appellants (H) appealed against a county court decision in respect of the respondent's Fatal Accidents Act damages claim. The deceased (M) died from mesothelioma, resulting from tortious exposure to asbestos while in the employ of H. The respondent (P) was M's widow and his only dependant.


M had worked for many years in Libya, and after his death his employer made a payment to his estate under a provident fund scheme of which he had been a member. The scheme provided for a payment under rule 9 on termination of service, which had accrued before M's death and had been paid to his estate, and for payment on retirement under rule 13.


P submitted that her dependency claim included an amount in respect of her husband's expectation of receiving a retirement payment under rule 13 and that the rule 9 payment should not be taken into account by virtue of section 4 of the Fatal Accidents Act 1976.


H submitted that M, having received benefits under rule 9, had exhausted his rights under the scheme and thus was not qualified for a rule 13 payment. Alternatively, that P had suffered no loss because she had already received the termination of service payment, which was in effect the same as the retirement benefit.


Jeremy Stuart-Smith QC (instructed by Capital Law) for the appellants; Nicholas Braslavsky QC, Mark Lomas (instructed by Moore & Blatch) for the respondent.


Held, the award of damages had to put P in the position that she would have been in had the tort not been committed. Had the tort not been committed, M would, on the evidence, have lived to retirement and received his rule 13 benefits. That was what M, and through him P, had lost. The fact that his service had been terminated and that he had been paid the rule 9 benefits, as the result of a reasonable reaction on his part to the effects of the tort, had to be ignored, because that would not have occurred if the tort had not been committed.


On the balance of probabilities, but for the tort, M would have retired and received the rule 13 benefits. That was what M and P had lost by his premature death. The fact of the payment under rule 9 did not mean that, even if the tort had caused the rule 13 payment not to be made, P had suffered no loss thereby. The rule 9 payment was made on a different occasion and for a different reason from the rule 13 payment and simply was not the same thing as a rule 13 payment.


Section 4 of the 1976 Act meant that the rule 9 payment had to be disregarded (Auty v National Coal Board [1985] 1 WLR 784 distinguished).



Appeal dismissed.





LANDLORD AND TENANT


Local authority housing - possession claims - right to buy - secure tenancies - competing right to buy claim - court's obligation to balance competing claims - conflicting claims - balancing exercise

Basildon District Council v Wahlen: CA (Civ Div) (Lords Justice Neuberger, Moses): 28 March 2006


The appellant local authority appealed against the decision of a district judge dismissing its claim for possession of a property under section 82 of the Housing Act 1985, and granting an injunction to the respondent (W), enforcing his right to buy under section 118 of the Act.


Following the death of W's mother he had succeeded to her secure tenancy. The local authority intimated that possession would be sought pursuant to section 16 of the Act on the basis that W was living alone in a three-bedroom house.


W notified the local authority that he wished to exercise his right to buy under section 118 of the Act. W accepted the local authority's offer to sell him the freehold and refused their offer of alternative accommodation. The local authority issued possession proceedings.


W informed the local authority that he had a mortgage offer and it instructed its legal department to deal with the conveyancing formalities. W served his defence to the possession proceedings, in which he sought to enforce his right to buy the house by means of an injunction.


The judge heard both claims at the same time and concluded that because the statutory requirements identified in section 138 had been established, the local authority was under a duty to grant the freehold to W. The judge made no reference to the local authority's grounds for seeking possession, but dismissed its claim and granted W's injunction.


The local authority contended that the judge was bound to balance the competing claims and that he had failed to do so. W argued that in the circumstances of this case no balancing exercise was required, or if it was, it so overwhelmingly required a decision in W's favour that any reference to the local authority's competing claim was unnecessary.


J Easton (instructed by the local authority solicitor) for the appellant; J Summers (instructed by Newman & Maxwell) for the respondent.


Held, the Act itself gave rise to the clash of the competing claims as section 121(1) provided no warrant for giving precedence to the claim for possession, and section 138(1) was silent as to the effect of an outstanding claim for possession on the landlord's obligation to grant an interest in the property. The conflict was not to be resolved by a race to judgment (Bristol City Council v Lovell [1998] LGR 308 applied).


If each claim was arguable it would seem right to investigate the merits as a whole, which would involve considering both cases at the same time and then deciding which should prevail. Accordingly, cases where it would be right not to hear both claims at the same time would be rare.


Where claims were heard at the same time the court had to consider how to resolve the conflict between the rival claims. The court agreed with most but not all of the guidance in Kensington and Chelsea RLBC v Hislop [2003] EWHC 2944 (Ch), [2004] 1 All ER 1036 (Hislop considered). When considering those factors that could properly be taken into account, it was not appropriate to suggest that any particular point might be likely to tip the balance. Each case must turn on its own particular facts, especially where there was no express statutory guidance on the factors to be taken into account.


The local authority could rely on the fact that, if the tenant's application for an injunction prevailed, the property in question would be under-occupied, with all the disadvantages that that involved in the light of housing shortages.


The local authority could not rely on the fact that it would lose property from its housing stock as the reason for the possession claim prevailing, as that was a consequence of the policy of part V of the Act.


In this case, the judge had carried out no balancing exercise and had made no reference to the local authority's competing claim. The balancing exercise had to be carried out, and it was an essential ingredient of any judgment that it contain some reasoning explaining how the balancing exercise was carried out and why the balance ultimately came down in the favour of W. Although it appeared on the evidence that W had a strong case, it was impossible to say that the judge had reached the only decision that could fairly have been reached. The matter was remitted to the county court for a retrial.


Appeal allowed.