Human Rights


Delay - parole - right to liberty and security - rights of prisoner serving determinate sentence

Johnson v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Waller, Buxton, Lloyd): 9 May 2007

The appellant (J) appealed against a decision ([2006] EWHC 1772) rejecting his claim that the delay in considering his application for parole amounted to a breach of article 5(4) of the European Convention on Human Rights.



In May 2000, J had been sentenced to seven years' imprisonment. He became eligible for parole on 3 June 2003. However, he was not recommended for release until 13 February 2004. J argued that an analogy could be drawn with prisoners serving indeterminate sentences, and that there was a parallel between his situation and that of the claimant life prisoner in R (on the application of Noorkoiv) v Secretary of State for the Home Department (No2) [2002] EWCA Civ 770, [2002] 1 WLR 3284, in which it was held that there had been a violation of article 5(4) where there had been a delay in the consideration of the prisoner's application for parole.



Held, if the decision challenged were correct, there would be an evident incongruity in that a life prisoner would have a right to compensation for a breach of article 5(4) where there had been a delay in the consideration of his application for parole, whereas a prisoner given a determinate sentence would not have such a right. The same arbitrariness was present in the cases of both prisoners. The fact that in the case of a life prisoner there was a statutory requirement for a case to be referred to the Parole Board, while in the case of a prisoner serving a determinate sentence there was merely an established practice of referring matters to the board, did not give rise to a distinction between the two categories of prisoners as far as article 5(4) was concerned.



In this case, there had been an unjustified and indeed arbitrary period of delay of eight and a half months. If J could show that at an earlier consideration by the board he would have been released, it would seem to follow that his detention for some period would be found to be arbitrary, unjustified, and therefore unlawful.



It would further seem that under article 5(4) he was entitled to have his case considered by the board 'speedily', so that his sentence did not become 'arbitrary', Noorkoiv applied, and R (on the application of Smith) v Parole Board [2005] UKHL 1, [2005]

1 WLR 350, and R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 2 WLR 24 considered.



The matter was remitted for consideration as to what compensation was due to J under article 5(5).



Appeal allowed.



Kris Gledhill (instructed by Guile Nicholas) for the appellant; Steven Kovats, Nicola Greaney (instructed by the Treasury Solicitor) for the respondents.





Criminal



Arrest - defence of property - defences - false imprisonment - mistake

R v Shwan Faraj: CA (Crim Div) (Lord Justice Tuckey, Mr Justice Bennett, Mr Justice Langstaff):4 May 2007
The appellant (F) appealed against his conviction for false imprisonment. The complainant (H) was an engineer who had gone to F's house to repair a time switch.



It was common ground that H had briefly entered the house before being allowed or told to leave. H alleged and F denied that F had armed himself with a knife and forced H to sit in a corner. F's case was that he had believed H to be a burglar but that he had not detained or restrained H at any time.



The prosecution case was that H had been unlawfully restrained from the moment he was threatened with the knife. The judge gave directions to the effect that, if the jury decided F did restrain H, it could consider whether F was exercising his lawful right either to arrest or to detain in defence of his property. The jury convicted.



F submitted that the defence of mistaken belief had been overlooked, and that the jury should have been directed that, if it accepted that F believed H was or might have been a burglar, F was entitled to be acquitted because his restraint of H was not unlawful. The Crown submitted that it had been unnecessary for the jury to consider mistaken belief because F did not claim that he was acting on the mistaken belief that H was a burglar but said that he had not restrained H at all.



Held, if the judge had left the case to the jury on the simple basis that it had to decide whether F had restrained H or not, she could not have been criticised. But once she agreed to direct the jury as to what the position would be if F had restrained H, it was incumbent on her to give correct directions as to the law. If she did not do so, it was open to F to raise the matter on appeal even though his counsel at trial did not put his case as it was put on appeal.



H's evidence established that he had been intentionally restrained by F. The question was whether that restraint was unlawful or without legal justification. Lawful arrest was one defence and reasonable defence of property was another. It was unnecessary to decide whether there had been a lawful arrest if F genuinely but unreasonably believed H to be a burglar. That was because in respect of defence of property, if F believed that H was a burglar he would be entitled to be judged on that basis even if his belief was unreasonable. There was no reason why a householder should not be entitled to detain someone in his house whom he genuinely believed to be a burglar. He would be acting in defence of his property by doing so.



Full effect could be given to the defendant's belief, however unreasonable it might be. But the householder had to believe honestly that he needed to detain the suspect and had to do so in a way that was reasonable. If all that F had done was to detain H for the purposes of establishing his identity, it was most unlikely that he would be found to have acted unreasonably. Whether his use of a knife to do so was reasonable was another matter, which would be for the jury to decide.



There was no free-standing right to detain that was not subject to the same limits as the defences of arrest and defence of property.



The judge had not referred to mistaken belief and had erroneously elided the defences of arrest and defence of property. The latter was a separate defence. It was not dependent on whether F had reasonable grounds for suspicion, but only on whether in fact he believed that H was a burglar. The summing-up was accordingly flawed in such a way as to cast doubt on the safety of F's conviction.



Appeal allowed.



A Penny for the Crown; R Banks for the appellant.





Costs



Conditional fee agreements - costs orders - discretion - part 36 - road traffic accidents - success fees

Tony Lamont v James Burton: CA (Civ Div) (Lords Justice May, Dyson, Lady Justice Smith):9 May 2007
The appellant (B) appealed against a decision of a judge to award to the respondent (L), who had brought a claim for damages against him following a road traffic accident, costs that included a success fee of 100%.



L had instructed solicitors under a conditional fee agreement of a type specified in rule 43.2(k)(i) of the Civil Procedure Rules (CPR), and issued proceedings against B. B admitted liability and filed no defence. His part 36 payment was not accepted by L. However, L was subsequently awarded a sum falling short of the part 36 payment.



The judge awarded L his costs up until the latest date on which the part 36 payment could have been accepted without the permission of the court, making a summary assessment which included a sum representing base costs and, pursuant to rule 45.16, a success fee of 100%. It was common ground that B's claim had concluded at trial, and the issue was whether the 100% increase was mandatory in all cases or whether there was a discretion to vary it. B argued that although rule 45.16 did not itself give the court jurisdiction to allow a different percentage increase, it contained a lacuna in that it did not deal with situations in which a claimant failed at trial to better a part 36 offer.



He submitted that it was a pre-condition for the application of rule 45.16 that the court should have first exercised its discretion under rule 44.3, and that where a claimant failed at trial to better a part 36 offer or payment, the court could award him a success fee no greater than it would have been under rule 45.16 had the offer been accepted, namely 12.5%.



Held, while there might well be a case for deciding that, where a claimant failed to better a part 36 offer or payment, he should be allowed only the same success fee as he would have recovered had he accepted it, that was not the effect of the CPR. The court could not use rule 44 to circumvent the mandatory provisions of rule 45. It could neither directly award a different success fee, nor could it award a claimant a proportion of his costs calculated for the purpose of awarding a different success fee. Nor could the exercise of the discretion in rule 44 be limited simply to situations in which a claimant had failed to better a part 36 offer or payment. Rule 44, when read in conjunction with rule 45, either permitted a different fee from that prescribed in rule 45 or it did not. If it did, then it could be invoked to allow a percentage increase which was at variance with that prescribed by rule 45.16 in any case where fairness required it, and the whole part 45 scheme would be unravelled. However, when read together, rules 44 and 45 did not have that effect. Moreover, there was nothing in the language of the rules that required the court to allow a 12.5% success fee where a claimant had failed to better a part 36 offer or payment, and B did not seek to argue that rule 44 could be invoked to award a reasonable success fee in cases to which section 111 of part 45 applied. Appeal dismissed.



Jeremy Morgan QC, William Poole (instructed by Cogent) for the appellant; Mr Cox (instructed by Colemans-Ctts) for the respondent.





Criminal Procedure



Delegation - jurisdiction - non-derogating control orders - validity - power to delegate determination of reporting obligations

R v AD: CA (Crim Div) (Lord Chief Justice Lord Phillips, Mr Justice Burton, Mr Justice Stanley Burnton): 3 May 2007
The appellant (D) appealed against a ruling at a preparatory hearing that the judge did not have jurisdiction to determine D's challenge to the validity of reporting obligations in a control order, and that, if he did have jurisdiction, he would have rejected D's challenge.



D had been made subject to a non-derogating control order under section 2 of the the Prevention of Terrorism Act 2005, requiring him to report in person to his local police station each day at a time to be notified by his contact officer. D then received a letter from an inspector at the police station, stated to be his contact officer, which notified him of the reporting time. D was charged with three counts of breaching the order, and at a preparatory hearing he sought to challenge the validity of the reporting obligations on the basis that the Home Secretary had no power to delegate the determination of reporting obligations. The judge held that D was seeking to challenge a 'control order decision', and that section 11 of the Act prevented D from doing so other than by proceedings in the High Court.



The judge further held that if he had had jurisdiction, he would have found that section 1(4)(p) of the Act empowered the secretary of state to involve third parties in monitoring the reporting obligations, and that in D's case the police where not confined to a passive role. D argued that there was no evidence that the secretary of state had authorised the inspector to determine the reporting obligations.



Held, D's argument that the secretary of state had no power to delegate the determination of reporting obligations did amount to seeking to question a control order decision by the secretary of state. The judge was correct to hold that such a challenge could only take place in the High Court. The judge also correctly held that it was open to the secretary of state under section 1(4)(p) to order D to comply with reporting obligations that would be specified by a person described in the order. Provided that the inspector was the relevant contact officer, the obligations that he notified to D fell within the powers conferred by the Act. The judge's ruling did not prevent further argument and evidence about whether the inspector did in fact have such authority. Appeal dismissed.



D Gottlieb, F Rowe for the appellant; P G Clement for the respondent.





Negligence



Foreseeability - reasonable care - reckless driving - road traffic accidents - nose poking - acceptable manoeuvres - lack of evidence of negligence

Farley v Buckley: CA (Civ Div) (Lords Justice Pill, Wall, Maurice Kay): 3 May 2007
The appellant (F) appealed against a decision dismissing his claim for damages for personal injuries sustained following a collision between his motor scooter and a car driven by the respondent (B).



F had been driving along a main road intending to overtake a long refuse wagon travelling in the same direction. The wagon was displaying its left indicator, showing the driver's intention to turn into a side road, and had slowed down, creating a gap in the traffic to enable B to drive out of that side road and turn right on to the main road. B's car had advanced beyond the front offside of the wagon when the scooter, as it completed the overtaking, collided with the car. The judge held that B had been moving continuously at about 5-8mph, and that F's case that B ought to have edged forward bit-by-bit (nose-poking) did not amount to indisputable evidence of negligence. The judge held that F had been travelling at a speed, namely 30mph, that had been reckless, especially having regard to the nature of the manoeuvre, the lack of visibility to his left, and the fact that the wagon had been displaying its left indicator. F submitted that both parties had been negligent and that an apportionment on a 50:50 basis would be appropriate because each had been culpably mindless of the foreseeable risk created by the other.



Held, the judge's finding that B had emerged from a minor road at about 5-8mph was difficult to reconcile with her finding that B had been proceeding slowly and cautiously. However, the real issue was whether B had been negligent to effect a continuous movement rather than to nose-poke. Given the short space between the offside of the wagon and the centre of the road, the difference between the two was extremely slight. It would be too much to expect a driver in B's position to calculate to a nicety the number of inches that it would be prudent to nose-poke. Moreover, nose-poking carried its own risks, in particular that it might provoke an overtaking motorcyclist into a hazardous swerve. On the facts, the judge was entitled to find an absence of negligence on the part of B. She was also entitled to regard F's conduct in the circumstances as reckless, and his lack of anticipation as showing a serious want of care. While it was foreseeable that it might be overtaking the wagon at modest speed, it was not foreseeable that it would be overtaking the wagon in the reckless manner found by the judge. Her use of the word 'reckless' was apt. This case was not authority for the proposition that a driver who failed to nose-poke would avoid a finding of negligence, and that emerging from a minor road at 5-8mph was generally acceptable.



Appeal dismissed



For the appellant: Michael Redfern QC, Richard Norton (instructed by Maddocks Clarke) for the appellant; Richard Hartley (instructed by Berrymans Lace Mawer) for the respondent.





Employment



Resignation - termination of employment - unfair dismissal

Charles Sandhu v Jan De Rijk Transport Ltd: CA (Civ Div) (Lords Justice Pill, Wall, Maurice Kay): 10 May 2007
The appellant (S) appealed against a ruling upholding a decision of the employment tribunal that he had not been unfairly dismissed by the respondent (J).



S had been summoned to a meeting with J's managing director (H) and its senior director of operations. H opened the meeting by telling S that he was to be dismissed. By the end, it had been agreed that S would remain employed for four months, that he would retain the use of his company car for two months, and that he would keep his mobile telephone for a short period.



On the day of the meeting, the parties signed a letter that began as follows: 'We hereby agree that we terminate your contract as per 01-04-2003.' The tribunal concluded that 'although the situation started off as a dismissal by [H's] statement, [S] in fact left because of the favourable terms he negotiated'. Therefore, the tribunal found that S had resigned rather than been dismissed and it rejected his claim for unfair dismissal.



S argued that the tribunal had misdirected itself in law as to the proper test to be applied in determining whether he had resigned or been dismissed.



Held, it was plain beyond peradventure that the tribunal had misdirected itself in law when it decided that the case was 'on all fours' with Sheffield v Oxford Controls Co Ltd [1979] ICR 396, and Crowley v Ashland (UK) Chemicals Ltd (unreported, 20 April 1979). The case was wholly different from both.



It was striking that there were no authorities in which the employee had been held to have resigned where the resignation had occurred in the same interview or discussion in which the question of dismissal had been raised. The reason was not far to seek: resignation, as the authorities indicated, implied some form of negotiation and discussion; it predicated a result that was a genuine choice by the employee.



In this case, S had been dismissed, and it simply could not be argued that he had been negotiating freely. He had not been warned that the purpose of the meeting was to dismiss him, and had had neither advice nor time to reflect. What he had done was to do his best on his own to salvage what he could from the inevitable fact that he was going to be dismissed. That was the very antithesis of free, unpressurised negotiation. Further, it could not be said that the terms that he had been able to obtain were particularly favourable. Moreover, the letter that S had signed on the day of the meeting was consistent with dismissal rather than resignation, Sheffield, Crowley, Spencer Jones v Timmens Freeman [1974] IRLR 325, Scott v Formica [1975] IRLR 104, Pascoe v Hallen & Medway [1975] IRLR 116, Staffordshire CC v Donovan [1981] IRLR 108, and Logan Salton v Durham CC [1989] IRLR 99 considered.



Appeal allowed.



Simon Jonathan Brown (instructed by Amanda Capon) for the appellant; Ghazan Mahmood for the respondent.