Police


Breach of the peace - demonstrations - false imprisonment - police powers and duties - right to liberty and security

(1) Louis Austin (2) Geoffrey Saxby v Commissioner of Police of the Metropolis: CA (Civ Div) (Sir Anthony Clarke (Master of the Rolls), Sir Igor Judge (President), Lord Justice Lloyd): 15 October 2007

The appellants (L and G) appealed against a decision ([2005] EWHC 480 (QB), [2005] HRLR 20) dismissing their claims for damages for false imprisonment and, under section 7 of the Human Rights Act 1998, for breach of their rights to liberty guaranteed by article 5 of the European Convention on Human Rights.



At about 2pm on May Day 2001, a crowd of demonstrators had marched into Oxford Circus. The police had information that a demonstration was planned but the organisers had deliberately given no notice of what would happen. The crowd who entered Oxford Circus at 2pm were, for the most part, prevented from leaving. Others entered Oxford Circus during the afternoon. At the end of the day, there were about 3,000 people there.



From about 2.20pm, no one was allowed to leave except with the permission of the police. Many were prevented from leaving for a period of over seven hours. As time passed, the physical conditions became increasingly unacceptable. L was a demonstrator who had made political speeches at the demonstration. G was not a demonstrator but had been detained behind the police cordon. Neither of them was violent or threatened violence or breached the police cordon or threatened to do so. L was exercising her right to demonstrate peacefully and G was innocently caught up in the events. Each wanted to leave the cordon but was not permitted to do so for a long period of time. After their requests to leave had been refused by police officers, neither made any attempt to break through the police cordon.



L and G submitted that they had been unlawfully deprived of their liberty, detained and unlawfully imprisoned by not being released much earlier than they had been, and that they should have been allowed to leave when they had asked to do so. The respondent commissioner submitted that there had not been a deprivation of liberty within the meaning of article 5 but only an interference with the appellants' liberty of movement.



Held, there had been an interference with the liberty of the appellants which amounted to the tort of false imprisonment unless it was lawful. Where and only where there was a reasonable belief that there were no other means whatsoever whereby a breach or imminent breach of the peace could be obviated, the lawful exercise by third parties of their rights might be curtailed by the police, O'Kelly v Harvey [1883] LR 14 Ir 105 and R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 AC 105 applied.



The judge had erred in concluding that all those within the cordon were about to commit a breach of the peace. The police knew that not everyone in the crowd was a demonstrator. However, the containment was lawful because, on the findings of fact made by the judge, the situation was wholly exceptional and the police had no alternative but to do what they did in order to avoid the imminent risk of serious violence by others.



The judge properly held that the police could not reasonably have foreseen what happened or that it would have been necessary to contain people for so long. Because what the police did in containing the crowd was necessary to avoid an imminent breach of the peace, it was lawful at common law. That was the case when the cordon was imposed and throughout the time that it was maintained. The conditions of necessity remained throughout because no one had suggested an alternative release policy. Individuals had been released from the cordon and there was no basis for concluding that the police behaved unreasonably or irrationally in deciding not to release the appellants on an individual basis.



In the circumstances, the original imposition of the cordon could not properly be regarded as the kind of arbitrary detention that would amount to deprivation of liberty within article 5, as opposed to an interference with the appellants' liberty of movement, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Guenat v Switzerland (24722/94), X v Germany [1981] 24 DR 1578 and HM v Switzerland (39187/98) [2004] 38 EHRR 17 considered. Nor were the appellants unlawfully detained thereafter.



As the judge concluded, there was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for seven hours; it was a dynamic, chaotic and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it.



In the circumstances, it could not sensibly be held that there came a time when what was originally something less than a deprivation of liberty subsequently became a deprivation of liberty within the meaning of article 5(1).

Appeal dismissed.



Keir Starmer QC, Phillippa Kaufmann (instructed by Christian Khan) for the appellants; David Pannick QC, John Beggs, George Thomas, Amy Street (instructed by a Force solicitor) for the respondent.





Tax



Consideration - discounts - motor fuel - output tax - sales promotion - vouchers

Revenue & Customs Commissioners v Total UK Ltd: CA (Civ Div) (Lords Justice Mummery, Maurice Kay, Richards): 18 October 2007
The appellant commissioners appealed against a decision ([2006] EWHC 3422 (Ch), [2007] STC 564) that the taxable amount of the fuel sales of the respondent oil company (T), on which it was liable to pay output tax, was to be reduced by an amount equal to the value of vouchers given to customers under a sales promotion scheme.



Under T's sales promotion scheme, customers who joined the scheme and purchased sufficient quantities of fuel at T's filling stations were entitled to receive vouchers which could be used in payment for goods or services purchased from certain national retailers. T claimed that the VAT consequences of the transfer of those vouchers by T to members of the scheme was that the taxable amount of its sales of fuel, on which it was liable to pay output tax, was reduced by an amount equal to the value of the vouchers transferred, that value being taken as the cost to T of purchasing the vouchers from the retailers.



T submitted that the transfer of a voucher by T to a redeeming customer operated to reduce the consideration obtained by T in respect of its supplies of fuel, and thus to reduce the amount by reference to which VAT output tax was payable. The commissioners submitted that the present case was not a price discount scheme but a customer loyalty scheme, and that the consideration obtained by T from the customer was the full price of the fuel and was not affected by the provision of vouchers under the scheme.



Held, the transfer of a voucher by T to a customer redeeming points under the scheme did not operate to reduce the consideration obtained by T in respect of its supplies of fuel. To treat the transfer of the voucher as the grant of a retrospective discount or rebate on the price of fuel under article 11 of Directive 77/388 was to mischaracterise it. It was important that the scheme's documentation did not describe the transfer of a voucher as a discount or rebate on the price of fuel. On the contrary, the earning of points under the scheme, and thereby of vouchers, by the purchase of fuel was presented to customers as a means of obtaining extra goods or services from the selected retailers.



An objective analysis was called for, without regard to the parties' subjective intentions or motivation, and the scheme documentation played an important part in that analysis, Tesco Plc v Customs and Excise Commissioners [2003] EWCA Civ 1367, [2003] STC 1561, Lex Services Plc v Customs and Excise Commissioners [2003] UKHL 67, [2004] 1 WLR 1 and Kuwait Petroleum (GB) Ltd v Customs and Excise Commissioners (C48/97) [1999] All ER (EC) 450 applied. Tesco also made clear that regard should be had to the economic purpose of the scheme which was a customer loyalty scheme, the purpose of which was to promote sales of T's fuel by encouraging motorists to come back for repeat purchases. The reality was that the customer paid the full pump price for the fuel, whether or not he was a member of the scheme and whether or not, if a member of the scheme, he earned sufficient points under the scheme to qualify for a voucher. The customer who received a voucher did not thereby receive a discount on the price of the qualifying purchases of fuel, but got something extra for the price he paid for the fuel.



T's scheme was one under which the customer got more at the same price rather than the same at a lesser price, Commission of the European Communities v Germany (C427/98) [2003] STC 301 considered, Elida Gibbs Ltd v Customs and Excise Commissioners (C317/94) [1996] STC 1387 distinguished.



The scheme was not a price discount scheme and the voucher was not to be treated as a reduction in the consideration received by T. The supply of fuel and the transfer of a voucher could not be said to be a single economic transaction, Kuwait Petroleum considered. To say that there were two different chains of supply, one relating to the fuel and the other to the vouchers, with no direct linkage, was to express, essentially, the same point in a different way.



Appeal allowed.



Christopher Vajda QC, Andrew Macnab (instructed by Revenue & Customs) for the appellant; John Walters QC, Barrie Akin (instructed by the in-house solicitor) for the respondent.





Criminal



Causation - unlawful act manslaughter - death resulting from supply of drugs

R v Simon Kennedy: HL (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Mance): 17 October 2007
The appellant (K) appealed against a decision ([2005] EWCA Crim 685, [2005] 1 WLR 2159) upholding his conviction for manslaughter.



K and the deceased (B) both lived in a hostel. K visited the room in which B was staying, was told by B that he wanted 'a bit to make him sleep', prepared a dose of heroin and gave B a syringe ready for injection. B injected himself and returned the empty syringe to K, who left the room. B later died, the cause of death being the inhalation of gastric contents while acutely intoxicated by opiates and alcohol.



The Court of Appeal certified the following question for the opinion of the House: 'When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A-controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?'.



Held, to establish the crime of unlawful act manslaughter, it had to be shown, among other things, that the defendant had committed an unlawful act, that such unlawful act was a crime, and that the act had been a significant cause of the death of the deceased. The parties to the appeal were agreed that an unlawful act on the present facts had to be found, if at all, in a breach of section 23 of the Offences against the Person Act 1861.



The substance of the section created three distinct offences, namely administering a noxious thing to any other person, causing a noxious thing to be administered to any other person, and causing a noxious thing to be taken by any other person. The Crown had accepted that, if it could not show that K had committed the first of those offences, it could not hope to show the commission of the second or third offences.



That concession had been rightly made and it was appropriate to explain why. The criminal law generally assumed the existence of free will and, subject to certain exceptions, informed adults of sound mind were treated as autonomous beings able to make their own decisions on how to act. Thus, a defendant was not to be treated as causing the victim to act in a certain way if the victim made a voluntary and informed decision to act in that way rather than another.



The finding in the present case that B had freely and voluntarily administered the injection to himself, knowing what it was, was fatal to any contention that K had caused the heroin to be administered to B or taken by him, R v Finlay (Paul Anthony) [2003] EWCA Crim 3868 overruled. Further, K had not administered the injection to B. The essential ratio of the decision of the Court of Appeal was that the administration of the injection had been a joint activity of K and B acting together.



Although it was possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection, nothing of the kind had occurred here. K supplied the drug to B, who then had a choice, knowing the facts, whether to inject himself or not. The heroin had been self-administered, not jointly administered, R v Rogers (Stephen) [2003] EWCA Crim 945, [2003] 1 WLR 1374 overruled. In the circumstances, the answer to the certified question was: 'In the case of a fully informed and responsible adult, never'.



(Obiter) Much of the difficulty and doubt which had dogged the present question had flowed from a failure, at the outset, to identify the unlawful act on which the manslaughter count was founded. It mattered little whether the act was identified by a separate count or counts under section 23, or by particularisation of the manslaughter count itself. But it would focus attention on the correct question, and promote accurate analysis of the real issues, if those who formulated, defended and ruled on serious charges of this kind were obliged to consider how exactly, in law, the accusation was put.



Appeal allowed.



Patrick O'Connor QC, David Bentley (instructed by Bullivant & Partners) for the appellant; David Perry QC, Duncan Penny (instructed by the Crown Prosecution Service) for the respondent.





Contracts



Arbitration clauses - bribery - charterparties - rescission - stay of proceedings

Fiona Trust & Holding Corporation & 20 ors v Yuri Privalov & 17 ors sub nom Premium Nafta Products Ltd (20th defendant) & ors v Fili Shipping Co Ltd (14th claimant) & ors: HL (Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood): 17 October 2007
The appellant ship owner (F), who had begun proceedings for a declaration that it had validly rescinded charterparties entered into with the respondent charterers (P), appealed against a decision ([2007] EWCA Civ 20, (2007) Bus LR 686) granting P a stay of those proceedings.



F had purported to rescind the charters on the basis that it believed them to have been procured through bribery. The charters contained a jurisdiction clause in relation to 'any dispute arising under this charter', and an arbitration clause which provided that any party could elect to have any such dispute referred to arbitration.



P had argued successfully before the Court of Appeal that the issue of whether F was entitled to rescind should be determined by arbitration rather than by a court. F maintained that it was entitled to bring court proceedings because the question of whether the charters were procured through bribery was not a dispute arising under the charters, and so the arbitration clause did not apply; if a contract was invalid through having been procured by fraud, the jurisdiction clause contained in it was not binding.



Held, it was time to draw a line under the authorities on the distinction between 'disputes arising under' and 'disputes arising out of' an agreement. A fresh start in relation to the construction of arbitration agreements was justified by the adoption of the principle of separability in section 7 of the Arbitration Act 1996. The construction of an arbitration clause had to start from the assumption that the parties, as rational businessmen, were likely to have intended any dispute arising out of the relationship into which they had entered, or purported to have entered, to be decided by the same tribunal.



The clause had to be construed in accordance with that presumption, unless the language made it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction. The language of the arbitration clause in the charters contained nothing to exclude disputes about the validity of the contract, whether on the grounds that it had been procured by fraud, bribery, misrepresentation or anything else. Accordingly, the clause applied to F and P's dispute.



The principle of separability contained in section 7 of the Act meant that the invalidity or rescission of the main contract did not necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement had to be treated as a distinct agreement and could be void or voidable only on grounds which related directly to it.



F's allegation was that the main agreement had been entered into as a result of bribery, but that did not show that it had been bribed to enter into the arbitration agreement. Section 7 of the Act meant that the two agreements had to be treated as having been separately concluded, and the arbitration agreement could only be invalidated on a ground which related directly to it and was not merely a consequence of the invalidity of the main agreement.



Appeal dismissed.



See also [2007] Gazette, 25 October, 6.



Christopher Butcher QC, Philip Jones QC (instructed by Ince & Co) for the appellants; Nicholas Hamblen QC, Vernon Flynn (instructed by Lax & Co) for the respondents.





Negligence



Asbestos - causes of action - employers' liability - psychiatric harm - risk - pleural plaques - risk of future disease and consequent anxiety - actionable damage

Johnston v Nei International Combustion Ltd: Rothwell v Chemical & Insulating Co Ltd & ors: Topping v Benchtown Ltd (formerly Jones Bros Preston Ltd): Grieves v FT Everard & Sons & ors: HL (Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance): 17 October 2007
The appellants (C) appealed against a decision ([2006] EWCA Civ 27, [2006] 4 All ER 1161) that pleural plaques caused by negligent exposure to asbestos, which were not in themselves damage that could give rise to a cause of action, did not become actionable damage when aggregated with the risk of future disease and consequent anxiety.



One of the appellants (G) appealed against a decision that psychiatric injury suffered by him was not a reasonably foreseeable consequence of the negligence.



C, who had been negligently exposed to asbestos dust by the respondent employers, had developed pleural plaques. The presence of such plaques did not usually occasion any symptoms. The plaques did not cause asbestos-related diseases, but they signalled the presence in the lungs and pleura of asbestos fibres that might independently cause life-threatening or fatal diseases.



G had developed not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. C submitted that, although they had no free-standing claim for the risks of developing diseases in the future as it was not pleural plaques themselves that gave rise to them and they had no free-standing claim for their anxiety, taken in combination, those various elements amounted to an injury that was more than negligible.



Held, the symptom-less plaques were not damage that could found a cause of action. It was not merely that the plaques caused no immediate symptoms. The important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of C to other diseases or shorten their expectation of life. They had no effect upon their health at all. Neither the risk of future disease nor anxiety about the possibility of that risk materialising amounted to damage for the purpose of creating a cause of action, Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176 and Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65 applied. Although the law allowed the risk of future disease and consequent anxiety to be taken into account in computing, the loss suffered by someone who had actually suffered some compensatable physical injury, in the absence of such compensatable injury, there was no cause of action under which damages could be claimed and, therefore, there could be no computation of loss in which the risk and anxiety could be taken into account, Brunsden v Humphrey (1884-85) LR 14 QBD 141 considered. Also, the pleural plaques did not amount to damage when aggregated with the risk of future disease or anxiety.



It was not possible, by adding together two or more components, none of which in itself was actionable, to arrive at something that was actionable. Further, section 32A of the Supreme Court Act 1981, which allowed a claimant to obtain provisional damages where there was a chance that a serious disease would develop in the future, did not support the aggregation theory. The provision made it clear that it applied only where the claimant had a cause of action.



G's psychiatric illness was not a reasonably foreseeable consequence of his employers' breach of duty. It was not reasonably foreseeable that the creation of a risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude, Page v Smith [1996] AC 155 distinguished on the facts.



Appeals dismissed.



See also [2007] Gazette, 25 October, 5.



David Allan QC, Ivan Bowley, Frank Burton QC, Harry Steinberg (instructed by Thompsons) for the appellants; Michael Beloff QC, Michael Kent QC, Michael Rawlinson, Sophie Allan (instructed by Halliwells) for the respondents.





Environment



Authorisations - sewerage undertakers - waste disposal - water treatment - disposal of non-hazardous waste

United Utilities Water Plc v Environment Agency for England & Wales: HL (Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood): 17 October 2007
The appellant water and sewerage undertaker (U) appealed against a decision ([2006] EWCA Civ 633, [2006] Env LR 42) that it was required, pursuant to the Pollution Prevention and Control (England and Wales) Regulations 2000, to secure permits from the respondent agency in respect of three of its sewage treatment plants.



The processes carried out at the three plants involved the partial treatment of non-hazardous waste water, and amounted to physico-chemical and biological treatment within the meaning of section 5.3(c) of Schedule 1 Part I to the Regulations. The waste water was reduced to sludge, thickened and digested, then sent by pipeline to a further processing plant, Shell Green. At Shell Green about a third of the sludge was disposed of either by incineration or by being sent for landfill, and two-thirds was recovered, mainly by being spread on agricultural land as fertiliser.



The issue for determination was whether, for a permit to be required, the production and discarding of the end-product had to take place within the same installation as its physico-chemical or biological treatment.



U submitted that the treatment of non-hazardous waste at an installation that produced an intermediate product, which was then transferred to another plant for final treatment and disposal, did not fall within the definition set out in section 5.3(c)(i) and (ii) to the Regulations of activities requiring a permit.



Held, the three plants did carry out activities requiring a permit. The purpose of the legislation was, among other things, to protect the environment against potential damage from operations involved in the disposal of non-hazardous waste, including physico-chemical or biological treatment. There was no rational explanation for any exclusion from the permit regime of treatment simply on the ground that the final product for discarding was produced elsewhere.



A purposive construction of section 5.3 was required and its meaning had to be spelled out by looking at the product's eventual destination when it was discarded. The wording of section 5.3(c)(i) and (ii) meant that the treatment had to form part of a process that resulted in a discarded, rather than a recovered, product but did not stipulate where that should take place.



Appeal dismissed.



Lawrence West QC, Wendy Outhwaite (instructed by Addleshaw Goddard) for the appellants; David Hart QC, Angus McCullough (instructed by the Environment Agency) for the respondents.