CRIME

Conspiracy - criminal conduct - mens rea - money laundering - proceeds of crime - statutory interpretation - suspicion - qualified guilty plea - mental element in conspiracy

R v Abdul Rahman Saik: HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood): 3 May 2006



The appellant (S) appealed against his conviction of the offence of conspiracy to launder money, contrary to section 1(1) of the Criminal Law Act 1977.


S had operated a currency exchange office in London. The case against S was that, in the course of that business, he had converted a substantial amount of pounds sterling, provided by others in the form of cash, into foreign currency, and that the cash was, or represented, the proceeds of drug trafficking or other criminal activity.


At trial, S had pleaded guilty to the offence, subject to the qualification that he had not known that the money had been the proceeds of crime; he had only suspected that that had been the case. Although reasonable grounds for suspicion were sufficient for the substantive offence of laundering money under section 93C(2) of the Criminal Justice Act 1988, the issue for consideration was whether they were enough for a conspiracy to commit that offence.


Ivan Krolick, Nicola Shannon (instructed by Bishop & Light) for the appellant; Nigel Peters QC, Duncan Penny (instructed by the Revenue and Customs Prosecutions Office) for the respondents.


Held, S could not be guilty of conspiracy to commit the substantive offence because he did not know, and therefore did not intend, that the money that he had agreed to convert would be the proceeds of crime when at a date in the future he performed his part of the agreement. The mental element in conspiracy was distinct from, and superseded, the mental element in the substantive offence. By virtue of section 1(1), the mental element of the offence of criminal conspiracy lay in both making an agreement with co-conspirators and the intention to pursue a course of conduct which would necessarily involve the commission of the crime in question by one or more of the conspirators.


In addition, under section 1(2) of the 1977 Act, there had to be a further mental element which was the intention or knowledge that a fact or circumstances necessary for the commission of the crime would exist. Suspicion was not sufficient. A conspiracy was an agreement about future conduct and when the agreement was made the fact or circumstances necessary for the commission of the substantive offence may not have existed.


Applying that reasoning to section 93C(2) meant that, in the case of identified property, it was for the prosecution to prove that the conspirator must have been aware that the property was in fact the proceeds of crime. In the instant case, where the conspiracy applied to unidentified property, it was for the prosecution to prove that S had intended that the property would be the proceeds of criminal conduct (R v Montila (Steven William) [2004] 1 WLR 624, applied). In accepting the qualified plea of S, the prosecution had accepted a lesser mental element to that required by section 1(2) for an offence of conspiracy. Appeal allowed.





DISCRIMINATION


Age - comparators - compensation - equal pay - indirect discrimination - redundancy payments - sex discrimination - statistics - statutory provisions - unfair dismissal - upper age limit of 65 on unfair dismissal and redundancy claims - proportion of men and women adversely affected

Secretary of State for Trade and Industry v Rutherford and another: HL (Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond): 3 May 2006


The appellants (R) appealed against the decision that sections 109 and 156 of the Employment Rights Act 1996 did not constitute indirect discrimination on the ground of sex. R were two men who had both continued to work beyond the age of 65 and were both subsequently dismissed. R wished to claim redundancy payment and compensation for unfair dismissal, but sections 109 and 156 stood in their way. Statistics showed that a higher proportion of men continued to work beyond the age of 65 compared to women. R contended that, since more men than women over the age of 65 were still in employment, relatively more men than women were prevented by the statutory bar from making claims for unfair dismissal or redundancy. R argued that that disparate effect constituted indirect discrimination, contrary to article 141 of the EC Treaty (Nice). R submitted that, in determining the proportions of those adversely affected, it was necessary to have regard to the statistics for employees under 65 and over 65, but that particular weight should be given to statistics for those over 65.


The secretary of state contended that the employment tribunal should look at all the statistics, but in a case like the instant case where the percentages of men and women under 65 who could fulfil the preconditions for having the rights to compensation and to redundancy pay were so close, there was no need to look at the figures for those over 65 who could not.


Robin Allen QC, Rachel Crasnow, Paul Troop (instructed by Linklaters) for Rutherford; (instructed by Islington Law Society) for Bentley; David Pannick QC, Melanie Hall QC, Kassie Smith (instructed by the Treasury Solicitor) for the respondents.


Held, sections 109 and 156 did not have an adverse impact on a substantially higher proportion of men than women and, therefore, did not constitute indirect discrimination on the ground of sex. (Per Lord Nicholls) The percentage of employees who were not adversely affected was about 98.8%. In that group, there was virtually no difference between men and women. The ratio of men to women who were adversely affected was 1.44:1. That ratio did not suffice to establish the necessary degree of disparate impact as between men and women. (Per Lord Scott) The only persons who would be affected by the statutory bar were those who decided to continue in employment after the age of 65. The statistical evidence that more women than men retired before the age of 65, with the consequence that relatively more men were affected by the statutory bar, did not constitute evidence that the statutory bar discriminated against men. All the evidence showed was that the statutory bar applied to relatively more men than women. A difference in treatment of individuals that was based purely on age could not be transformed by statistics from age discrimination into sex discrimination. (Per Lord Rodger) Article 141 was designed to ensure that men and women who were in the workforce received equal pay for equal work, not to ensure that equal proportions, or indeed any particular proportion, of the men and the women in any age group would be members of that workforce. In order for R to establish indirect discrimination, they would have to show that a substantially higher proportion of male workers over the age of 65 than female workers over the age of 65 were disadvantaged. (Per Lord Walker) In the consideration of R's claims, the comparison of proportions produced strikingly different results, depending on whether the comparison focused on proportions of 'advantaged' men and women or proportions of 'disadvantaged' men and women. The question as to whether statistics relating to the 'disadvantaged' group could be used in a suitable case had been left open by the court in R v Secretary of State for Employment, ex parte Seymour Smith [2000] 1 WLR 435. In the instant case, the disadvantaged, as a percentage of the pool, contained men to women at a ratio of 1.44:1. The advantaged, as a percentage of the pool, contained men to women in the ratio of 1:1.004. The domestic jurisprudence provided some support for an advantage-led approach that would simply take the statistics as it found them. There would be some cases where a disadvantage-led approach would serve as an alert to the likelihood of objectionable discrimination, but the proportion of 1.44:1 was not such a significant disparity as to make it necessary to resile from the absence of any significant disparity in the two advantaged groups. The employment tribunal had erred in ignoring totally the effect of an advantage-led approach, Seymour Smith [2000] 1 WLR 435 and R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ICR 447, applied. Appeals dismissed.





EUROPEAN UNION


Derivative rights - EC law - foreign nationals - freedom of movement for workers - marriage - rights of entry and residence - standard of proof

Zackaria Muhidin Ali v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice May, Keene and Wall): 3 May 2006


The appellant (Z) appealed against a decision of an immigration judge that he had no right of residence in the UK under EC law.


Z, a Somali national, had arrived in the UK in 2002 and had claimed asylum. The secretary of state rejected that claim.


Z had claimed to be married to N, a Dutch citizen, who had arrived in the UK with her four children in 2000 when she was five months pregnant. Z had a son (Y), a Dutch national, who was born in 1999. The judge found that there was a family relationship between Z and N, but did not accept Z's assertion that they were married. The judge also rejected Z's contention that N was a 'worker' within the meaning of article 39 of the EC Treaty (Nice). She further held that the fact that Y was in education in the UK did not give Z a right of residence in the UK.


Z argued that the judge had been wrong to decide the issue of whether he and N were married on the balance of probabilities; when deciding that N was not a 'worker' within the meaning of article 39 of the EC Treaty, the judge had misdirected herself by taking account of the fact that N had been pregnant on arrival in the UK as part of the reasoning for disbelieving her evidence that she had at the time been seeking work. Furthermore, the judge had been wrong to hold against N the fact that, because of the need to care for her children, she had not been in a position to seek employment; Y had a right of residence in the UK by virtue of article 18 of the EC Treaty, so that he too had such a right.


Becket Bedford (instructed by Sulton Lloyd) for the appellant; Tim Eicke (instructed by the Treasury Solicitor) for the respondent.


Held, there was no basis on which it could be said that the judge had been wrong to apply the normal civil standard of proof when deciding whether Z and N were married. There was no authority to that effect, and such a proposition was quite unjustified in principle.


A judge was entitled to take account of the fact that a witness was pregnant at a particular time if that fact was relevant to deciding whether or not she was to be believed in her evidence as to what she had done at the time. Furthermore, although it was certainly right that a European Community national need not actually be in employment at the relevant time to qualify as a 'worker', there had to be evidence that he was seeking employment and that he had genuine chances of being engaged (Commission of the European Communities v Belgium (C344/95) [1997] ECR I-1035 and R v Immigration Appeal Tribunal, ex parte Antonissen (C292/89) [1991] ECR I-745, considered).


In the instant case, the judge had been entitled on the evidence to find that N had never sought employment in the UK. Therefore, she had also been entitled to conclude that N was not a 'worker' for the purposes of EC law and the Immigration (European Economic Area) Regulations 2000. Therefore, N was not a 'qualified person' under those regulations and Z had no right of residence, even if he had been her spouse.


None of the European Court of Justice's decisions recognised the unfettered right of residence argued for by Z, and several of them clearly implied that there was no such right merely because of article 18 (Baumbast v Secretary of State for the Home Department (C413/99) [2002] ECR I-7091 and Chen v Secretary of State for the Home Department (C200/02) [2005] QB 325, considered).


What was noticeable was the persistent theme in the relevant directives and the jurisprudence of the Luxembourg court that the right of residence under article 18 was not unfettered. In particular, there was a recognition of the principle that the exercise of that right should not place an unreasonable burden on the public finances of the host state. Therefore, the court could not accept Z's contention that Y, a Dutch citizen, enjoyed any right of residence in the UK merely because of article 18 and his being in receipt of primary education (R v Secretary of State for the Home Department, ex parte Vitale [1996] All ER (EC) 461, followed).


Accordingly, Z himself could not obtain any derivative right as his father. In the circumstances, there was no basis on which Z had any right to remain in the UK as a result of EC law or the 2000 regulations. Appeal dismissed.





HOUSING


Homelessness - local connection - local housing authorities powers and duties

Ozbek v Ipswich Borough Council: CA (Civ Div) (Lords Justice Chadwick and Sedley, Lady Justice Arden): 4 May 2006


The appellant local authority appealed against the decision that it had been wrong to refer the homelessness application of the respondent (O) to another local authority.


O was a Turkish national of Kurdish ethnicity who had entered the UK as an asylum seeker. He and his wife had been granted indefinite leave to remain. He had then become eligible for assistance under part VII of the Housing Act 1996.


O and his family were provided with accommodation by the National Asylum Support Service in Portsmouth. Portsmouth City Council offered O and his family long-term accommodation but he refused it. O then left Portsmouth and applied to the respondent local authority for accommodation. The local authority referred the application back to Portsmouth under section 198 of the 1996 Act, on the ground that O had a local connection with Portsmouth and not with Ipswich. On a review under section 202 of the Act, the local authority confirmed its decision that the family connections of O and his wife with Ipswich were not sufficiently close to fall within the relevant referral guidelines, that there were no special circumstances and that there was a local connection with Portsmouth, where O had been living.


The county court judge allowed O's appeal, holding that the review decision was plainly wrong.


Wayne Beglan (instructed by the local authority solicitor) for the appellant; Stephen Goodfellow (instructed by Ashton Graham) for the respondent.


Held, the local authority had not misapplied the relevant guidelines. An authority was not to be criticised for following the guidance in an individual case, provided that it had not closed its mind to the possibility that the particular facts of that case might require a departure from the guidance. It was desirable, if the statutory referral scheme was to work smoothly, that both the referring authority, and the authority to which the application was referred, applied the guidelines generally to all applications which came before them, so that both could speedily agree on the issues of local connection, Eastleigh BC v Betts [1983] 2 AC 613, applied.


An authority would be entitled to decide that an applicant had a local connection because of family associations with its own district, or with the district of another authority, in circumstances where there were no near relatives of the applicant living in the relevant district, or where the relatives who were living in the district had not been living there for the relevant five-year period, R v Hammersmith and Fulham London Borough Council, ex parte Avdic [1996] 30 HLR 1, considered.


However, in the instant case, the question was not whether the local authority would have been entitled to decide that O did have a local connection because of family associations, but whether it was entitled to decide that he did not. The judge had been wrong to determine that question against the local authority. The review decision addressed the correct question and, applying the guidelines, it was impossible to say that the conclusion that O did not have the necessary family associations was untenable. Therefore, the judge should not have reversed the review officer's decision.


On the basis that the conditions for referral were satisfied, the local authority's decision to refer was not an incorrect exercise of discretion and the decision to refer was restored. Appeal allowed.





MEDIA


Civil procedure - legal profession - media and entertainment - contempt of court - disclosure - handing down judgments - journalists - publication of draft judgments

Baigent and anor v Random House Group Ltd (sub nom The Lawyer): ChD (Mr Justice Peter Smith): 3 May 2006


The court gave guidance as to the treatment of draft judgments by journalists. Shortly before the court had handed down its substantive judgment in the instant case ([2006] EWHC 719 (Ch)), The Lawyer magazine had become aware of the result of the action and published it on its Web site. Once The Lawyer had been informed of its error, the result was removed from its Web site. The Lawyer's apology for its error was accepted and it was determined that it was not in contempt of court.


Guy Tritton (instructed by Orchard Brayton Graham) for the claimants; John Baldwin QC, James Abrahams (instructed by Arnold & Porter (UK)) for the defendants; Geoffrey Shaw QC, David Glen (instructed by Davenport Lyons) for The Lawyer.


Held, Practice Direction 40E (Reserved Judgments) 2005 was issued to deal with draft judgments. Prior to it, the parties did not see a judgment in draft until one hour before it was due to be handed down, and lawyers were unable to take any instructions from their clients on the draft. The practice direction enabled lawyers to discuss draft judgments with their clients and other appropriate people but on terms that they agreed to keep the draft confidential until it was pronounced and to take no steps on the draft before it became a judgment. It was clear that any breach of those terms could be a contempt of court. From the explanations given by The Lawyer's journalists, it was fair to say that they ought to be made more familiar with the law as to draft judgments than they were on the date judgment in the instant case was handed down. Any damage caused by the disclosure was not significant. While journalists had a legitimate interest in publishing matters and publishing a scoop, those interests must not collide with clear legal principles. Journalists should appreciate in future that, under the practice direction, unless a specific order was made, all draft judgments were embargoed and could not be published until the official judgment was handed down. The publication of a draft judgment would be regarded as contempt of court. Given the publication of the instant ruling, it would not be possible for journalists to say that they did not understand the nature of a draft judgment. The consequences of a breach of the practice direction might be severe. It was important that the mechanism under the practice direction was not abused and, if it was, the courts would have to withdraw it and clients would be inconvenienced. Judgment accordingly.





PERSONAL INJURY


Negligence - damages - employment - torts apportionment - asbestos - causation - mesothelioma - risk - self-employment - several liability

Barker v Corus (UK) plc; Murray (widow and executrix of the estate of John Lawrence Murray, deceased) v British Shipbuilders (Hydrodynamics) Ltd and ors; Patterson (son and executor of the estate of J Patterson, deceased) v Smiths Dock Ltd and ors: HL (Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond): 3 May 2006


The appellant employers appealed against decisions of the Court of Appeal (including [2004] EWCA Civ 545, [2005] 3 All ER 661) in respect of their liability for damages for negligently exposing the respondents to asbestos dust.


The respondent in the first case (B) had died of asbestos-related mesothelioma. During his working career, he had had three material exposures to asbestos. The first two exposures were in consequence of breaches of duty by the employers, the second employer being the first appellant (C). The third exposure was while B was working as a self-employed plasterer and involved a failure by B to take reasonable care for his own safety.


The judge and Court of Appeal held that C was jointly and severally liable with the first employer, but subject to a 20% reduction for B's contributory negligence while he was self-employed.


In the second case, the respondent (P), who had died of mesothelioma, had been, during his working life, regularly exposed to asbestos in breach of duty by four employers, although the periods of exposure were of different lengths.


In the third case, the respondent (M) had been exposed to asbestos in shipyards by a number of employers.


In the cases of P and M, the judges and Court of Appeal followed the decision in B's case in holding that the solvent employers were jointly and severally liable for the full damage. C submitted that it should not be liable at all as a matter of causation, since there had been a period when B and no one else had been responsible for his exposure to asbestos dust; and the appellants submitted, among other things, that they should be severally liable only according to the share of the risk created by their breach of duty.


Jeremy Stuart-Smith QC, Charles Feeny, Jayne La Grua (instructed by Berrymans Lace Mawer) for Corus (UK) plc, (instructed by Eversheds) for Smiths Dock Ltd and British Shipbuilders (Hydrodynamics) Ltd; David Allan QC, Peter Cowan (instructed by John Pickering & Partners) for Barker, (instructed by Thompsons) for Murray; Allan Gore QC, Nigel Lewers (instructed by Robinson & Murphy) for Patterson.


Held, (Lord Rodger of Earlsferry dissenting on the issue of apportionment) as an exception to the usual rule of causation, a worker who had contracted mesothelioma after being wrongfully exposed to asbestos at different times by more than one employer or occupier could sue any of them notwithstanding that he could not prove which exposure had caused the disease (Fairchild v Glenhaven Funeral Services Ltd [2002] IRLR 533, applied).


The Fairchild exception could operate even though not all the potential causes of damage were tortious, and a non-tortious source of risk did not have to have been created by someone who was also a tortfeasor (McGhee v National Coal Board [1973] 1 WLR 1, considered).


However, it was an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arose out of the existence of another potential causative agent that operated in the same way, Wilsher v Essex Area Health Authority [1988] 2 WLR 557, distinguished.


The decision of the majority in Fairchild proceeded on the basis that the creation of a material risk of mesothelioma was sufficient for liability. If the basis of liability was the wrongful creation of a risk or chance of causing the disease, the damage that the defendant should be regarded as having caused was the creation of such a risk or chance. If that was the right way to characterise the damage, then it did not matter that the disease as such would be indivisible damage (Dingle v Associated Newspapers Ltd [1961] 2 QB 162, distinguished).


Treating the creation of the risk as the damage caused by the defendant involved quantifying the likelihood that the damage that was known to have materialised was caused by that particular defendant. It would then be possible to determine the share of the damage that should be attributed to him. The attribution of liability, according to the relative degree of contribution to the chance of the disease being contracted, would also be fair. On that approach, questions of contributory negligence and contribution would not normally arise.


The instant cases would be remitted to redetermine the damages by reference to the proportion of the risk attributable to the breaches of duty by the appellants. Appeals allowed.


See [2006] Gazette, 11 May, 4.





POLICE


Attendance - entertainment - formation of contract - police powers and duties - request for special police services - policing of music festival - recovery of policing costs

Reading Festival Ltd v West Yorkshire Police Authority: CA (Civ Div) (Lords Justice Scott Baker, Jacob, Neuberger): 3 May 2006


The appellant music festival organiser (R) appealed against judgment given in favour of the respondent police authority (W) on its claim for payment for special police services under section 25(1) of the Police Act 1996.


For four years W had provided special police services to R for the running of an annual three-day music festival. Each year, a fee had been agreed and paid. The following year, W was opposed to the festival taking place due, in part, to the escalation of violence at the event in previous years. At a meeting before the event, R had expressed its desire to have W police the event as it had before, while W made clear its position that it would not be putting significant numbers of officers on the site, but the parties did not reach agreement. However, the event took place, with W changing its strategy by having fewer officers and a much lower profile on site. R hired security staff to manage the safety of the site. W provided officers based in the surrounding community who were ready to be called on if necessary. The issues on appeal were whether R had made a request for special police services under section 25(1), and whether the services provided by W were special police services within the meaning of section 25(1).


Robert Englehart QC, Max Mallin (instructed by Freeth Cartwright) for the appellant; James Watson QC, Jeremy Johnson (instructed by the force solicitor) for the respondent.


Held, the judge had erred in his conclusion that R's expression at the meeting of its hope that there would be officers on the festival site amounted to a request for special police services under section 25. However, even assuming that that conclusion was correct, W had provided something entirely different, namely a large contingent offsite that could be called up if R's onsite arrangements proved inadequate. There was nothing to suggest that the police were required in surrounding villages in order for R to stage the festival. The request under section 25(1) could not be divorced from the special services for which a charge was to be made. The judge was not entitled on the facts that he found to hold that R had requested special police services under section 25. The judge's conclusion that no agreement had been reached between W and R meant that W's claim was bound to fail because it was very hard to see how section 25(1) could operate without a contract, even though it did not expressly say so. It was for R to decide, albeit after negotiation, what special services it wanted, even though it was for W to decide how it would provide them.


W had not provided special police services. The predominant purpose of W's operations was the protection of the public at large, albeit occasioned by the festival. When considering the application of section 25(1), it was inapposite to consider special police services without considering the request at the same time. Although much of what W did outside the festival site was arguably for the dual benefit of the public and R, R had not requested it. It was impossible comprehensively to define special police services, and the particular circumstances were likely to be critical. However, one of two key features were likely to be present: either the services would have been asked for but would be beyond what the police would consider necessary to meet their public duty obligations, or they would be services that, if the police did not provide them, the asker would have to provide from its own resources. Essentially, however, special police services would be something that somebody wanted. Whether services were provided on private or public property was likely to be a very strong factor. There was a strong argument that where promoters put on a function that was attended by large numbers of the public, the police should be able to recover their additional costs of policing the event and the local community affected by it. That seemed only just where the event was run for profit. However, that was not the law. Harris v Sheffield United Football Club Ltd [1988] 1 QB 77, considered. Appeal allowed.