Criminal Procedure


Control orders - modification - restrictions - terrorism - change in circumstances - curfews

AF v Secretary of State for the Home Department: QBD (Admin) (Mr Justice Goldring): 17 August 2007

The appellant (F) appealed against the refusal of the respondent secretary of state to modify a non-derogating control order made against him pursuant to section 2 of the Prevention of Terrorism Act 2005.



The order imposed electronic tagging, a curfew between 7pm and 7am, restrictions as to place of worship, communications and travel. The order also restricted F to a certain geographical area when he was out of his residence.



F, who received incapacity benefit, had applied to modify the order on the basis that there had been a change of circumstances. In view of the change in prayer timetable of one of the two mosques he had been permitted to attend, he sought a reduction in the curfew period from 12 hours to 9 hours. F also sought to modify the curfew times to improve his prospect of employment. Further, he sought a relaxation of the geographical restriction to allow him to play football outside the permitted area. F suggested that he could be accompanied by someone such as a police officer. Moreover, F sought to modify the order so that he could attend a particular Arabic-speaking mosque, possess and use a mobile telephone so that he could communicate with his family when outside his home, visit his mother outside the permitted area and stay overnight, and reside in another city. The secretary of state, relying on security reasons, refused F's application.



Held, the proposal to modify the times in order to help F to obtain employment had no basis. F received incapacity benefit because he was unable to work. If F did obtain work, consideration could be given to a modification once the details were known. However, there had been a change in circumstances that required a modification of the curfew period. The hours of services at the mosque had changed. The hours of daylight were longer. A comparatively small modification to the curfew might result in F being able to attend the 7.30pm service at the mosque and be home by 8pm. In the circumstances, a curfew between 7pm and 7am did not continue to be necessary; it could be modified by one hour.



It was impracticable for a police officer to accompany F to football matches. The geographical restriction affecting football grounds continued to be necessary.



The order should be modified to enable F to attend the Arabic-speaking mosque.



Restricting F's ability to use a mobile phone in order to limit his ability to communicate with his extremist associates and restricting his ability to spend time with his mother outside the permitted area continued to be necessary.



If F suggested a city in which he would like to reside, the secretary of state could decide whether the current obligation continued to be necessary. However, it was not for the secretary of state to suggest where F should live. Therefore F's request was not a reasonable one.



Appeal allowed in part.



Zubair Ahmad (instructed by Middleweeks) for the appellant; Tim Eicke, Andrew O'Connor (instructed by the Treasury Solicitor) for the respondent; Jeremy Johnson (instructed by the Treasury Solicitor) for the special advocate.





Criminal



Common law - obscenity - outraging public decency - public places - sexual offences

R v Simon Austin Hamilton: CA (Crim Div) (Lord Justice Thomas, Mr Justice Aikens, Dame Heather Steel): 16 August 2007
The appellant (H) appealed against five convictions for committing acts outraging public decency, contrary to common law.



H had admitted that in 2001 he had engaged in a practice known as 'up-skirting'. He had taken video footage with a camera that had been positioned at a certain angle to enable him to take footage up the skirts of various women and a 14-year-old girl at supermarkets. The acts only came to light following a police search of H's home in respect of other matters.



H applied unsuccessfully to have the charges dismissed on the basis that there was no evidence of publication in the activity. The Crown's case was that the offence was made out because the filming could have been seen by people at the supermarkets.



The judge ruled against H, stating that there was ample evidence for a jury to properly infer that the images had been taken in public and that the filming was capable of being seen by more than one member of the public. A further submission of no case to answer at the close of the Crown's case was also rejected.



H submitted that the judge had erred in ruling that there was a case to answer, since the offence of outraging public decency, as developed by nineteenth century cases, was confined to lewd acts witnessed by at least one person; and that the public element was satisfied if at least one other person witnessed the act. H argued that, since nobody had seen him filming, public decency had not been outraged and no offence had been committed.



Held, it was clear that the offence of outraging public decency had particular elements that had to be established before a person could be convicted of that offence. Various nineteenth century cases had established that it was necessary to prove two elements: namely that the act was of such a lewd, obscene or disgusting nature as to outrage public decency, and that the act took place in a public place and was capable of being seen by two or more persons, even if they had not actually seen it. Those elements had been affirmed by later cases, R v Mayling (Cyril) [1963] 2 QB 717, Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435, R v May (John) [1990] 91 Cr App R 157, R v Rowley (Michael) [1991] 1 WLR 1020, R v Walker (Steven) [1996] 1 Cr App R 111 and R v Choi (Ching) considered. As to the first element, an obscene act was one that offended against recognised standards of propriety and that was at a higher level of impropriety than indecency, R v Stanley (Alan Basil) [1965] 2 QB 327 considered.



H's conduct was capable of being judged by a jury to be lewd, obscene or disgusting and the jury was entitled to reach that conclusion, even if nobody saw him carrying out the filming.



As regards the second element, namely the public element, that required the act to be done in a place that the public had access to or a place where what was done was capable of public view. H's filming in a supermarket clearly satisfied that part of the public element. However, the public element was not satisfied unless the act was capable of being seen by two or more persons who were actually present, even if they did not see it. Therefore, although nobody saw H filming, there was evidence from the videos that others were present. Accordingly, the jury had been entitled to convict H.



Appeal dismissed.



Antony Chinn QC, Trevor Siddle (for the appellant); James Townend QC, Andrew Jones (for the respondent).





Civil Procedure



Confidentiality - disclosure - foreign judgments - freedom of expression - interim injunctions - judgment creditors - privacy

(1) Long Beach Ltd (2) Denis Christel Sassou Nguesso v Global Witness Ltd: QBD (Mr Justice Stanley Burnton): 15 August 2007
The applicants (L and N) applied for interim injunctions requiring the respondent (G) to remove from its website information and documents relating to the affairs of L and N, obtained as a result of proceedings in the High Court of Hong Kong.



N was the son of the president of the Republic of the Congo, and was the president and director general of the marketing arm of the state-owned oil company. L was an Anguillan company owned by N. G was a non-profit-making English company that campaigned against corruption. A judgment creditor (K) of the Congo brought Norwich Pharmacal proceedings in Hong Kong in order to trace and seize assets belonging to the Congo.



The Hong Kong court ordered a secretarial company in Hong Kong to disclose information and documents to K. The documents disclosed included those relating to the affairs of L and N. Those documents were referred to at a hearing of the Hong Kong court that was open to the public. K passed copies of the documents to G, which posted them on its website.



On the application of L and N, the Hong Kong court made an order restraining G from publishing the documents, and an order restraining G from disclosing the making of the application and the order. L and N brought English proceedings relying on their rights to confidentiality and privacy, on N's rights under article 8 of the European Convention on Human Rights, and the alleged misuse of the documents by K and G.



L submitted that comity required that the English court should not question the correctness of the judgment of the Hong Kong court and should not, by its proceedings, judgment or orders, question or undermine the injunctions and restrictions imposed by the Hong Kong court; that the specified documents remained private and confidential, notwithstanding their having been referred to in court open to the public in Hong Kong; and that N's rights under article 8 were clearly engaged and the publication of the specified documents infringed those rights.



Held, comity required the English court to treat the judgments and orders of the courts of Hong Kong with due respect. However, G was not a party to the Hong Kong proceedings and was not bound by the Hong Kong judgment. Furthermore, since it did not carry on business in Hong Kong, it was not subject to that jurisdiction under English rules for the recognition of foreign judgments, and the English courts did not regard it as having an obligation to comply with the judgments of that jurisdiction. The court could not sensibly address the issues raised without referring to the order of the Hong Kong court. There was a significant public interest in the subject matter of G's publications, such that it would infringe G's rights under article 10 of the convention were the English court to treat itself as bound by the restrictions on reference to the procedures of the Hong Kong court.



The specified documents were, when disclosed to K, by their nature and content confidential. That they were referred to in open court was clear; the extent of that reference was not. Nonetheless, the court should proceed on the basis that there was sufficient reference to them as would have removed their confidential status if they had been disclosed on discovery and referred to in open court in England. L and N failed to show that, at trial, they were likely to establish that the documents were protected by confidentiality. L and N had not sought to establish that, at trial, they were likely to prove that G knew that the documents were confidential or restricted when it published them, and on the evidence they could not do so.



N's rights under article 8 were undoubtedly engaged. However, there was a clear and overwhelming case for refusing relief on the ground that there was an important public interest in the publication of the specified documents and the information derived from them.



It was unlikely that L and N could establish that their rights under article 8 or their right to privacy or any remaining confidentiality in the specified documents, or the comment and allegations derived from them could override G's article 10 right to freedom of expression and the public interest in publication. Once there was good reason to doubt the propriety of the financial affairs of a public official, there was a public interest in those affairs being open to public scrutiny.



Having had regard to the matters, the court was required to take into account by section 12 of the Human Rights Act 1998, L and N failed to show that they were likely to establish at trial that publication of the material that was the subject of the application should not be allowed.



Application refused.



Matthew Nicklin (instructed by Schillings) for the applicants; Andrew Nicol QC (instructed by Finers Stephens Innocent) for the respondent.





Costs



Conditional fee agreements - formalities - signatures - solicitor and client costs

Tammy Preece v Caerphilly County Borough Council: CC (Cardiff) (Judge Hickinbottom): 15 August 2007
The appellant (P) appealed against a decision that a conditional fee agreement (CFA) made between her and her solicitors (S) was unenforceable.



P had sustained injuries after stumbling in a pothole. She instructed S to commence proceedings against the respondent local authority and entered into a CFA. After-the-event insurance was also obtained. The matter was decided in P's favour and the local authority was ordered to pay her costs of the claim.



At the detailed assessment of costs, the judge held that the CFA relied upon by P in the assessment was unenforceable because it had not been signed by S in accordance with regulation 5(1) the Conditional Fee Agreements Regulations 2000 and, consequently, the local authority's liability to pay costs was limited to those disbursements that P had personally paid and the insurance premium.



P submitted that the absence of the signature from the CFA was not a material breach. She argued that the primary purpose of the statutory scheme was to protect clients of solicitors as consumers, and that the absence of the signature was innocent and did not and could not have had any adverse effect upon her. P also submitted that when considering the materiality of a breach, the focus had to be on the consequences of the breach.



Held, a solicitor's signature on a CFA was important and not a mere trivial formality. If a CFA was not signed, then a less scrupulous solicitor might seek to enforce his right to be paid reasonable costs if the client's claim failed. The signature of the solicitor provided the client some real protection against that possibility. As a prerequisite to enforceability, Parliament had clearly and unambiguously required a number of formalities to be undertaken with regard to the CFA. Regulation 5 expressly required the CFA to be signed by the legal representative. There was no ambiguity in that requirement. Total failure to comply with a significant part of a requirement could not, in any circumstances, be regarded as substantial compliance, London & Clydeside Estates Ltd v Aberdeen DC [1980] 1 WLR 182 considered. The doctrine of substantial compliance did not concern consequences but rather compliance with the requirement, Hollins v Russell [2003] EWCA Civ 718, [2003] 1 WLR 2487 considered, and Myatt v National Coal Board [2006] EWCA Civ 1017, [2007] 1 WLR 554 applied.



Accordingly, in the present case, the CFA was unenforceable. Therefore, the liability of the local authority was restricted to those disbursements that P had personally paid and the insurance premium.



Appeal dismissed.



Andrew Arentsen (instructed by Patchell Davies) for the appellant; Benjamin Williams (instructed by Dolmans) for the respondent.





Sentencing



Imprisonment for public protection - prisoners - sentencing tariff - effective assessment of danger to public - lawfulness of continued detention

R (on the application of James) v Secretary of State for Justice: QBD (Admin) (Mr Justice Collins): 20 August 2007
The claimant prisoner (J) applied for judicial review of the defendant secretary of state's management and treatment of him as being contrary to law.



J had been sentenced under section 225 of the Criminal Justice Act 2003 to imprisonment for public protection for an offence of assault occasioning grievous bodily harm with a tariff imposed of one year and 295 days. J had the right to apply to the Parole Board for release once his tariff had expired, but in order for him to make any meaningful submissions to the board, it was necessary for him to have undertaken various rehabilitation courses, as his progression at those courses would assist the board in assessing the risk that he posed to the public. Those courses were not made available to J.



J contended that, having regard to Wells v Parole Board [2007] EWHC 1835 (QB), his continued imprisonment after the expiry of his tariff without any effective assessment of the risk that he posed to the public was unlawful. The secretary of state contended that the decision in Wells was not binding on the court and that it would be contrary to Parliament's intention to order J's release, as he could not show that he was not a risk to the public.



Held, while the decision in Wells was not strictly binding on the court, the reasoning in it, namely that the secretary of state's failure to provide rehabilitation courses was unlawful, it frustrated Parliament's intention and it prevented prisoners from showing that they did not pose a risk to the public, and that the continued detention of those prisoners was unlawful, was persuasive. J had been prevented from showing that he no longer posed a risk to the public, therefore his continued detention after the expiry of his tariff was unlawful. Accordingly, it was appropriate to grant a declaration to that effect, but to stay the declaration pending an appeal to the Court of Appeal.



Application granted.



Pete Weatherby (instructed by Switalski's) for the claimant; Parishil Patel (instructed by the Treasury Solicitor) for the defendant.