Licensing


Administrative decision-making - casinos - consultation - gambling - licences

R (on the application of British Casino Association Ltd & ors) (claimants) v Secretary of State for Culture Media & Sport (defendant) & (1) British Amusement Catering Trades (2) Talarius Ltd (3) Noble Organisation (4) Shipley Leisure Ltd (interested parties): QBD (Admin) (Mr Justice Langstaff): 11 June 2007

The claimants (B) applied for judicial review of the decision of the defendant secretary of state to make the Gambling Act 2005 (Commencement No 6 and Transitional Provisions) Order 2006 and of the secretary of state's refusal to reconsider the provisions of that order.



B were casino operators and their trade association. They took the view that the regime established by the combination of the Gambling Act 2005, draft regulations to be made under the Act relating to categories of casinos and categories of gaming machines, and the 2006 order was such as to subject them to considerable competitive disadvantage.



They complained that casinos under the new regime would be entitled to have more gaming machines than existing casinos, and to offer additional services such as bingo and betting, which existing casinos could not, and that the market was such that it could not easily sustain rival casinos of both existing and new types in the same locality.



They also complained about the removal of the entitlement to operate machines under section 21 of the Gaming Act 1968. The order contained the transitional provisions permitting existing casinos to continue to operate under a converted casino premises licence and limiting the number of gaming machines, and the ability to offer bingo and betting services. B submitted that the secretary of state had been wrongly constrained by her view of the effect of the 2005 Act to believe that she had no scope when making the order to improve the position of existing casinos; that there had been no proper prior consultation on the relative gambling entitlements of existing and new casinos; and that the secretary of state had been in material error of fact in thinking very few existing casinos were of sufficient size to qualify under the new licensing regime as small or large casinos, and thereby exercised her powers upon a false basis.



Held, in making the relevant provisions of the order, the secretary of state had not wrongly concluded that she had no discretion to alter the gambling entitlements of existing casinos. The evidence was that the submissions made by B in that regard had been considered. Measures were in fact taken to ameliorate the position of those existing casinos.



One such measure was taken in the order itself, which demonstrated that the secretary of state could not have regarded her hands as completely tied by the Act. It was wrong to view the order in isolation. It was part and parcel of a range of measures to effect the same legislative policy. There was nothing irrational about that policy.



Assuming, without deciding, that consultation entered into prior to the primary and secondary legislation, giving effect to the government's policy on gambling required an opportunity to be given to B to state their position so that it might be considered, the facts amply demonstrated that that had happened. The process was to be seen as a whole. The position of existing casinos was made plain by B and considered by the secretary of state.



The error on which B relied was the statement that there were 'very few' existing casinos large enough to fall within the definition of a small casino in the Act. Had the words 'a minority' of existing casinos been used instead, no violence would have been done either to the sense or to the point.



Even if the secretary of state was mistaken as to fact, the mistake was not material, since there was, in fact, no other approach open to her. She was bound to recognise, given the Act, that existing and new casinos were not in a like position.



Application refused.



Michael Beloff QC, Tim Ward (instructed by Lovells) for the claimants; Mark Hoskins, Maya Lester (instructed by the Treasury Solicitor) for the defendant; Dinah Rose QC (instructed by Baker & McKenzie) for the interested parties.





Housing



Homelessness - schools - suitable alternative accommodation - duty of reviewing officer to make further inquiries

Williams v Birmingham City Council: CA (Civ Div) (Lords Justice Ward, Buxton, Lawrence Collins): 14 June 2007
The appellant (W) appealed against a decision that the respondent local authority had discharged its duty as she had refused a suitable offer of accommodation.



W, who had two children aged seven and three years, had applied as homeless to the local authority under part VII of the Housing Act 1996.



The local authority accepted that W was homeless and warned her that its policy was to make only one offer of suitable accommodation. An offer was made, but W refused on the basis that it was too far from her son's school, and would mean she had to use eight buses to get there and back each day.



The local authority stated that it had discharged its duty to provide suitable accommodation. The reviewing officer upheld the decision and stated that the school was not too far away or, alternatively, a new school could be found as a change of school would not be detrimental to W's son.



On appeal, the reviewing officer's decision was upheld. W contended that the reviewing officer had failed to make further inquiries of her as to the time of the school journey, what alternative schooling there was near the offered property and how onerous the journey was.



Held, the test to be applied was whether no reasonable reviewing officer would have regarded the case as one where it was unnecessary to make further inquiries, Cramp v Hastings BC [2005] EWCA Civ 1005, [2005] 4 All ER 1014 applied. The reviewing officer had clearly taken into account the length of the journey, the age of W's son and the distance from the school. Whilst the circumstances were not ideal, W had an alternative choice in that she could move her son to a school closer to the offered property, and that point had weighed heavily in the reviewing officer's decision. Accordingly, the recorder was right to rule as she had, as it was not a case where it was incumbent on the local authority to make further inquiries of W.



Appeal dismissed.



Stephen Cottle (instructed by Eric Bowes & Co) for the appellant; C Rowlands (instructed by the local authority solicitor) for the respondent.





Criminal Procedure



Confiscation orders - dissipation of assets - drug trafficking - excise duty - legal advice and funding - receivers - restraint orders

Revenue & Customs Prosecution Office v (1) Robert William Briggs-Price (2) Nicholas O'Reilly: CA (Civ Div) (Lords Justice Ward, Tuckey, Wall): 14 June 2007
The appellant Revenue & Customs Prosecution Office (RCPO) appealed against an order made by a judge in chambers granting the second respondent receiver (R) permission to release funds, held pursuant to a restraint order, for legal expenses.



The first respondent (B) had been charged with offences of drug trafficking and the evasion of excise duty on imported cigarettes. R had been appointed receiver and manager of B's assets pursuant to a restraint order under the Drug Trafficking Act 1994 and the Criminal Justice Act 1988.



The restraint order required R to release to B money for legal expenses actually, reasonably and properly incurred. B had been convicted after a trial and had been sentenced to concurrent terms of imprisonment. A confiscation order had been made. R had applied to the court for directions granting him permission to release funds to solicitors instructed by B to pay the legal expenses incurred on the hearing of the confiscation order application, on any appeal against the confiscation order, and on the application for directions.



An application on paper for permission to appeal against the confiscation order had been dismissed and B intended to renew the application at an oral hearing. The judge made the order sought, on the basis that he was bound by authority to disregard the availability of public legal funding when considering whether to direct the receiver to release restrained funds for B's legal representation.



The RCPO submitted that the judge had failed to give appropriate weight to the factual history of the matter, which had already seen the amount available for confiscation diminish by almost £1 million paid in legal fees and expenses in the six years since the restraint order had been made; and to adopt the proper approach to such applications, namely that all sources of alternative funding should be exhausted before recourse should be had to restrained assets that would otherwise be used to satisfy the confiscation order, as indicated by section 82(2) of the 1988 Act and section 31(2) of the 1994 Act.



Held, the present case did not raise a point of principle but involved merely an exercise of judicial discretion. The judge had a discretion to release funds. That discretion was properly and judicially exercised on the facts. The RCPO was a party to the restraint order and had been kept informed by R of all sums paid in legal expenses. At no point had the RCPO applied to vary the order, nor had it ever seriously questioned the fees. There was no suggestion that the fees were improperly incurred. If the RCPO was to rely on the fact of a substantial diminution in the restrained funds, it could not simply stand by whilst those sums were extracted.



If either the RCPO or R had thought funds were being improperly extracted from the restraint order, an application could and should have been made to the court to vary the order to prevent it.



Against that background, the judge was entitled to give little weight to the history. The diminution in the funds was nothing to do either with B's new solicitor or the reason why he wanted funds to cover the work he was instructed to undertake.



Any order made by the judge had to be lawful within section 82(2) of the 1988 Act and section 31(2) of the 1994 Act. The question for the judge was a straightforward one. The parties had agreed that an exception should be made to the restraint order for legal expenses which were actually, reasonably and properly incurred in the criminal proceedings. B wanted to appeal against the confiscation order. If he was successful, it would not affect his basic term of imprisonment, but it would affect the amount of his benefit and, possibly, the length of the additional term of imprisonment which would be the consequence of non-payment of the confiscation order. That was a legitimate purpose, Customs and Excise Commissioners v Norris [1991] 2 QB 293 applied. The present case was a post-conviction case in the sense that the outstanding appeal would not affect B's conviction or the length of his original sentence of imprisonment. But it was not, in the Norris sense, right to categorise it as a post-conviction case. As a matter of fact, all other sources of alternative funding had been exhausted. Public funding was not available for the renewed oral application. Release of funds for the prospective appeal was properly within the terms of the order and the statutory scheme.



Appeal dismissed.



David Perry QC, Mark Sutherland Williams (instructed by the in-house solicitor) for the appellant; Clare Montgomery QC, Tim Kendal (instructed by Henry Milner & Co) for the first respondent; Barry Stancombe (instructed by Blake Lapthorn Tarlo Lyons) for the second respondent. C





Amendments - arraignment - counts - failure to attend - indictments - waiver - questioning of witnesses by counsel in absence of defendant - right to cross-examine

R v John K: CA (Crim Div) (Lord Justice Thomas, Mr Justice Keith, Mr Justice Lloyd Jones): 13 June 2007
The appellant (K) appealed against his conviction for unlawful wounding with intent, contrary to section 18 of the Offences against the Person Act 1861.



K had been involved in a fight with the victim (V) in the men's toilet in a pub. V had suffered bruising to the head and wounds to the eye which required stitches, and K was arrested and charged with unlawful wounding contrary to section 20 of the Act.



On the morning of the trial, K was informed that the prosecution intended to make an application, adding a count charging him with wounding with intent contrary to section18. K failed to attend and the judge granted an application for the case to proceed in his absence. An application for the count under section 18 to be added to the indictment was also granted.



While counsel was cross-examining V, the judge had interrupted his suggestion that V had known K and was the aggressor, and interrupted his questioning relating to what had happened in the toilet during the fight. He subsequently ruled that questions based on K's account of events could not be put to the witnesses in any significant detail.



On the second day of the trial, counsel applied to discharge the jury on the basis that K had not been arraigned in respect of the count under section 18. The judge refused the application on the grounds that K was aware of the application to amend, and that the trial would proceed in his absence and his position was unaffected. A further application to discharge the jury, made at the close of the prosecution case, was also refused.



K appealed on the grounds that the judge had erred in permitting the trial to proceed in his absence because he had not been arraigned on the count under section 18 and might have reviewed his position in relation to the plea of not guilty to the section 20 offence had he been present; and that he had erred in not discharging the jury and in his ruling restricting V's cross-examination.



Held, K knew that the trial would proceed in his absence if he failed to appear and knew of the prosecution's intention to add a count under section 18. There was no explanation of K's failure to appear and if an explanation had been put forward, the court would have considered it to determine whether the proceedings as a whole had been fair and in conformity with article 6 of the European Convention on Human Rights.



The fact that K had had no opportunity to reconsider his plea in respect of the indictment under section 20 flowed from his own decision to absent himself. The issue in relation to the arraignment was one of waiver and was to be determined in accordance with the same principles of waiver as were applicable in proceedings in the absence of an appellant, R v Jones (Anthony William) [2002] UKHL 5, [2003] 1 AC 1 applied and R v Williams (Roy Brian) [1978] QB 373 considered.



It was clear that the judge was correct in ruling that K had waived his right to an arraignment in respect of the offence under section 18 and in respect of his attendance at trial.



As counsel had decided to continue to conduct the case, it was his duty to do so on the basis of the instructions he had received and on the basis that K had decided not to give evidence. His right in accordance with that duty to cross-examine was an important safeguard to the fairness of the trial to be conducted in the absence of K. Counsel was entitled to question witnesses in as much detail as he wished based on his instructions, but without indicating what K's evidence might have been and in the knowledge that he would not be able to call evidence to contradict the answers given.



He was entitled to cross-examine in the hope of either showing that K's instructions were accepted by the witnesses or casting doubt on the accuracy of their accounts.



The judge's ruling on the scope of cross-examination curtailed the right of K through counsel to challenge the evidence against him and denied K of the right to a fair trial provided by common law and guaranteed by article 6, and therefore a re-trial was ordered.



Appeal allowed.



N De la Poer for the appellant; N Worsley for the Crown.





Civil Procedure



Decisions - domestic violence - findings of fact - parental contact - permission to appeal - submissions at judgment - alleged deficiency in judgment - duty of counsel to request clarification

Re S (children): CA (Civ Div) (Lords Justice Thorpe, Wall, Mr Justice Hedley): 14 June 2007
The appellant father (F) and paternal grandparents (G) appealed against findings of fact made by a judge in favour of the respondent mother (M) concerning allegations of domestic violence.



M, F, their children (C) and G had all lived together in the same house. F suffered from moderate to severe learning difficulties and was dependent upon G to support him. M took C and left the family home, and F subsequently applied for contact. M had no objections to C maintaining contact with F, but did object to C having contact with G given the history of domestic violence M claimed she had suffered.



M alleged that numerous incidents had occurred, including one where G had encouraged assault on her, and another where F had hit her after being instructed to do so by G. As contact with F necessarily entailed contact with G, a fact-finding hearing was held. The judge heard evidence from the family and from a consultant psychologist, who stated that F knew the difference between right and wrong, and did not always automatically follow instructions. The judge held that the vast majority of M's allegations had been made out.



Immediately following the judgment, F and G applied for permission to appeal on the ground that the judge had failed to make reference to the evidence of the psychologist in his determination. That application was rejected and was brought before the instant court on the same ground.



Held, it was a shame that the judge did not make specific reference to the evidence of the psychologist in his judgment. However, there was nothing in the judgment to suggest that he had deliberately ignored or rejected his evidence. The judge merely decided that it did not have weight, bearing in mind the totality of the remaining evidence. It was also plain that the psychologist's evidence related more to the issue of potential contact between F and C than it did to the issue of credibility or findings of fact.



The judge approached the matter with considerable care. He made clear views on credibility and translated them into specific findings, and it was inconceivable to say that such findings were not open to him to make.



If counsel were to take a view after the delivery of a judgment that the judge had not dealt comprehensively with a particular issue, namely, in the present case, the evidence of an expert, it was not satisfactory to draw the judge's attention to the alleged deficiency by way of an application for permission to appeal. Instead, it was incumbent upon counsel to point out the deficiency and request clarification or a supplemental judgment on the issue, English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 considered.



Appeal dismissed.



D Cadman for the grandparents; D Marson for the father; S Jamieson for the mother.





Criminal Procedure



Anti-social behaviour orders - breach of injunction - discretionary custodial sentences - public interest - waiver

Anthony Lee v Accent Foundation Ltd: CA (Civ Div) (Lady Justice Arden, Lords Justice Dyson, Maurice Kay): 14 June 2007
The appellant (L) appealed against a decision to activate a suspended sentence and impose a further custodial sentence for two breaches of an anti-social behaviour order (ASBO) granted in favour of the respondent housing trust (H) under section 153c of the Housing Act 1996.



H had obtained the injunction against L following an incident in which L assaulted his sister (S) at her home. The order prohibited L from entering the locality where S and his mother (M) lived, threatening violence and harassing local people.



L breached the order by hiding under M's bed and was subsequently arrested. The judge warned L that his behaviour was not acceptable, but did not impose a criminal penalty.



L breached the order again by visiting S at her request and a suspended custodial sentence of 28 days' imprisonment was imposed.



A week later, M invited L into her home and he was again arrested for breach of the order. L was brought before the court again, where the district judge activated the suspended sentence in relation to his previous breach and imposed further imprisonment of one month for the most recent breach. The judge accepted L's evidence that he had attended M's home at her request, but rejected the argument that, in doing so, M had waived the breach.



L submitted that the judge erred in finding that there had been a breach of the order, since a civil contempt could be waived when the party for whose benefit it was made was content that it should not be performed; that both judges took insufficient account of the fact that S and M had themselves invited him on to their premises; and that if there was a breach, the district judge erred in imposing a consecutive sentence of one month's imprisonment and should have imposed a period of 28 days.



Held, the question for the court was whether or not a person for whose benefit an ASBO had been obtained could, by inviting the person whom the order was made against into their home, waive that order, provided that nobody else was affected by that waiver. There clearly was a general proposition that there would be occasions when a party might waive a breach of an order. However, inevitably, there were circumstances where the court would not accept that an invitation by a beneficiary was sufficient to amount to a waiver, particularly where there was a public interest in maintaining that order.



L had relied upon S and M's consent, but he had not obtained the consent of the party on behalf of whom the order had been granted, namely H. The possibility that, in different circumstances and another context, the issue was severable between the obtaining party and the benefiting party could not be excluded. However, in the present case, the order had not only been obtained for the benefit of M and S, but for the neighbours affected by his conduct as well.



It could not be disputed that the judge who imposed the suspended sentence had borne in mind the fact that S had invited him to her home. It was clear that the district judge had also accepted L's evidence that he had been invited to M's home, but had not accepted his evidence that M had set him up for a breach of the order by inviting him and then informing the police of his presence.



On the facts, there had been no failure by the district judge to take account of the circumstances of L's breach and he had not been wrong in principle to impose a further custodial sentence. The only criticism that could be made was that the district judge imposed a consecutive sentence of one calendar month rather than 28 days, and that period was substituted.



Appeal allowed in part.



G Pennock for the appellant.





Human Rights



Armed Forces - death - foreign nationals - Iraq - public authorities - right to life - territorial application

R (on the application of Mazin Mumaa Galteh Al-Skeini & ors) v Secretary of State for Defence: HL (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood): 13 June 2007
The appellants (S) appealed against a decision ([2005] EWCA Civ 1609, [2007] QB 140) that their claims against the respondent secretary of state fell outside the scope of the European Convention on Human Rights.



The secretary of state cross-appealed against the court's decision that the claim of the sixth appellant (M) fell within the scope of the Human Rights Act 1998.



The appellants were relatives of Iraqi citizens who, it was claimed, had been unlawfully killed by members of British Armed Forces in southern Iraq in 2003. As to M's claim, it was alleged that his son had died as a result of injuries sustained in a detention unit in a British military base. In 2004, the appellants' representative wrote to the secretary of state, asking him to hold a public inquiry into their relatives' deaths. The secretary of state having indicated that he would not do so, the appellants issued proceedings, asserting that the secretary of state's decision was unlawful under section 6 of the 1998 Act, as it was incompatible with their rights under article 2 of the Convention.



The secretary of state argued that the 1998 Act did not apply outside the territory of the UK; and in any event, with the exception of M's son, the deceased had not been within the jurisdiction of the UK for the purposes of article 1 of the convention when they were killed.



Held, (Lord Bingham dissenting on the first issue) section 6 of the 1998 Act should be interpreted as applying not only when a public authority acted within the UK, but also when it acted within the jurisdiction of the UK for the purposes of article 1 of the convention, but outside the territory of the UK. The purpose of the 1998 Act was to provide remedies in domestic law to those whose human rights had been violated by a UK public authority. Making such remedies available for acts of a UK authority in the territory of another state would not be offensive to the sovereignty of the other state. There was therefore nothing in the wider context of international law that pointed to the need to confine sections 6 and 7 of the 1998 Act to the territory of the UK.



Further, Lord Nicholls had confirmed in R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No2) [2005] UKHL 57, [2006] 1 AC 529 that, in interpreting the rights in schedule 1 to the Act, courts had to take account of the territorial scope of the relevant right under the convention.



In the present case, that meant having regard to those exceptional situations where article 2 would apply outside the territory of the UK. In other words, on a fair interpretation, article 2 in schedule 1 had to be read as applying wherever the UK had jurisdiction in terms of article 1 of the convention. The corollary was that section 6 had also to be interpreted as applying in the same circumstances, Quark Fishing applied.



The secretary of state had accepted that, as the relevant events had occurred in a British detention unit, M's son had met his death 'within the jurisdiction' of the UK for the purposes of article 1. In those circumstances, the parties were agreed that because of certain factual developments, M's case should be remitted to the Divisional Court.



As to the other appellants, their relatives had not been within the jurisdiction of the UK for the purposes of article 1 when they were killed. In that respect, it would not be proper to proceed beyond the jurisprudence of the European Court of Human Rights in Bankovic v Belgium (Admissibility) (52207/99) 11 BHRC 435, in which the court had stated that the vocation of the convention was 'essentially regional' and that it operated 'in an essentially regional context and notably in the legal space (espace juridique) of the contracting states', Bankovic applied and Issa v Turkey (31821/96) (2005) 41 EHRR 27 not applied.



Appeals dismissed, cross-appeal dismissed.



Judgment accordingly.



Rabinder Singh QC, Michael Fordham QC, Shaheed Fatima, Christine Chinkin (instructed by Public Interest Lawyers (Birmingham) for the appellants; Christopher Greenwood QC, Philip Sales QC, Cecilia Ivimy (instructed by the Treasury Solicitor) for the respondent; Keir Starmer QC, Richard Hermer, Charles Banner (instructed by Bhatt Murphy) for the interveners.