CRIMINAL
Causing harassment alarm or distress - racially aggravated offences - partial racial hostility - sufficiency of exhibition of partial racial hostility to constitute racially aggravated offence

Johnson (appellant) v Director of Public Prosecutions (respondent) & Sheffield Crown Court (interested party): DC (Lord Justice Richards, Mr Justice Swift): 26 February 2008

The appellant (J) appealed by way of case stated against the decision of the interested party Crown Court to uphold his conviction for a racially aggravated public order offence.



J, who was black, had been involved in an altercation with two parking attendants who were white. J told them 'this is our patch not yours' and 'you don't belong here', and in particular J said 'why don't you get up... with your white uncles and aunties'. J was charged with using threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress, contrary to section 5 of the Public Order Act 1986. A magistrates' court found that J was guilty of an offence under section 5 and that that offence was racially aggravated, contrary to section 31 of the Crime and Disorder Act 1998.



J unsuccessfully appealed to the Crown Court which found that the language used had demonstrated racial hostility. J contended that the mere fact that reference was made to the colour of the parking attendants and to leaving the black community alone was not sufficient to constitute racial hostility.



Held: in the present case, there had been a proper evidential basis for the Crown Court to find that the words used by J had demonstrated a racial hostility at least in part, and it was accordingly entitled to find on the facts before it that J had committed a racially aggravated public order offence. It was clear from the language that J had been talking in racial terms. The words used were capable of demonstrating racial hostility; however, whether in general words actually demonstrated racial hostility was a question of fact for the relevant tribunal, DPP v Howard, unreported February 7, 2008 DC considered. Moreover, it did not matter whether the hostility displayed was partly racial and partly directed at a general class of individuals, namely parking attendants; it was sufficient that the hostility was in part racial.



Appeal dismissed.



Erimnaz Mushtaq (instructed by Howells in Sheffield) for the appellant; Michael Rawlinson (instructed by the Crown Prosecution Service) for the respondent; no appearance or representation for the interested party.





SENTENCING

Actual bodily harm - assault - minimum term - robbery

R v Barrington Robert Taylor: CA (Crim Div) (Lords Justice Hooper, Blake, Dame Heather Steel):

22 February 2008

The appellant (T) appealed against a sentence of imprisonment for public protection with a minimum term of eight years, imposed following a conviction on two counts of robbery and assault occasioning actual bodily harm.



The offences involved two different victims (X and Y). In relation to the first incident, the jury had been satisfied that T had robbed X and kicked her severely. The judge said that it was one of the most serious offences of assault occasioning actual bodily harm that he had ever seen. The second offence involved an accomplice who took Y's mobile telephone, and when Y resisted T produced a knife and minor injuries were caused. The judge sentenced T to two concurrent determinative sentences in respect of the assaults occasioning actual bodily harm.



Held: the judge made no reference to the 2006 sentencing guidelines on robbery. He had a duty to have regard to those guidelines in accordance with section 172 of the Criminal Justice Act 2003.



In a case of street robbery, guidelines provided helpful guidance. Where there were guidelines it was expected that a judge would explain in his reasons if he departed from them. A starting point of eight years was appropriate and the sentence should have been reduced to between two to seven years. Overall, a notional determinative sentence should have been 14 rather than 16 years.



Appeal allowed.





PLANNING

Discrimination - local government - green belt - gypsies - planning inspectors

R (on the application of Baker & Ors) (appellants) v (1) Secretary of State for Communities & Local Government (2) Bromley London Borough Council (respondents) & Equality & Human Rights Commission (intervener): CA (Civ Div) (Lords Justice May, Dyson, Sir Robin Auld): 28 February 2008

The appellant Irish travellers (B) appealed against a decision ([2007] EWHC 2370 (Admin)) upholding a planning inspector's refusal of planning permission to pitch caravans on a site in the green belt.



B were already living on the site. They had nine children between them. The older children attended local schools. Before moving to the land, the older children had not attended one school for more than a few weeks. The planning inspector had considered B's circumstances and gypsy status, their need to be on the site in question, the need for additional gypsy sites, and the alternative sites available. In refusing planning permission, she concluded that the considerations in B's favour did not outweigh the harm to the green belt because there was no critical need for any of B to be on that particular site.



B submitted that the inspector (1) had acted in breach of section 71(1)(b) of the Race Relations Act 1976 by failing to have due regard to the need to promote equality of opportunity between persons of different racial groups; (2) had failed to have regard to the disruption of the older children's education that refusal of permission would cause; (3) had wrongly imposed a requirement on B to show a special need to live on the site as a prerequisite to their demonstrating the existence of very special circumstances.



Held: (1) A planning inspector had a duty under section 71(1) whether or not the point was raised by any of the parties to the appeal. The duty under section 71(1) was not a duty to achieve a result, namely to eliminate unlawful racial discrimination or promote equality of opportunity and good relations between persons of different racial groups. Rather, it was a duty to have due regard to the need to achieve those goals. The failure of an inspector to make explicit reference to section 71(1) was not determinative of the question whether he had performed his duty under the act: that would be to sacrifice substance to form, R (on the application of Smith) v South Norfolk Council [2006] EWHC 2772 (Admin), [2006] 46 EG 209 (CS) approved. The question in every case was whether the decision-maker had in substance had due regard to the relevant statutory need. Although a reference to section 71(1) might not be sufficient to show that the duty had been performed, it was good practice for an inspector to make reference to it in all cases where it was in play. In that way, he was more likely to ensure that the relevant factors were taken into account and the scope for argument as to whether the duty had been performed would be reduced. There had been no breach of section 71(1) in the present case. The inspector had been alive to the plight of gypsies and the disadvantages under which they laboured as compared with the general settled community. She had considered B's gypsy status to be a factor that weighed in their favour. The only rational reason for that view was that gypsies suffered from inequality of opportunity as compared with persons of different racial groups, namely the general community. The inspector had taken full account of that and, by treating it as a factor in B's favour, had showed that she had due regard to the need to promote equality of opportunity between them. The inspector had also made reference to Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites, and had considered the need for additional gypsy sites and the reasons why the five authorised sites in the local authority's area were not available to B. (2) It did not follow from the fact that the older children had never been in one school for more than a few weeks before living at the site that the same pattern would occur after they moved away from the land.



The inspector had appreciated that B would suffer hardship and that there would be some interference with the right to education, but she had to balance that against the need to protect the environment. How much weight to attach to educational disruption was a matter for the exercise of her planning judgment. Her conclusion was not perverse or inadequately reasoned.



(3) The inspector had not imposed on B the burden of showing that they needed to be at that particular site. B had to discharge the burden of showing that there were very special circumstances such as would justify their inappropriate development in the green belt. Had they been able to show particular ties to the site, they might have discharged that burden. It was in that context and for that reason that the inspector had asked the question whether B needed to be at that particular site, Simmons v First Secretary of State [2005] EWCA Civ 1295, [2006] JPL 575 considered.



Appeal dismissed.



Richard Drabble QC, Stephen Cottle (instructed by South West Law Ltd) for the appellants; Philip Coppel (instructed by the Treasury Solicitor) for the first respondent; Robin Allen QC, Catherine Casserley for the intervener.





PERSONAL INJURY

Employment - negligence - causation - consent - contributory negligence

Eileen Corr (administratrix of the estate of Thomas Corr, deceased) v IBC Vehicles Ltd: HL (Lords Bingham of Cornhill, Scott of Foscote, Walker of Gestingthorpe, Mance, Neuberger of Abbotsbury): 27 February 2008

The appellant company (V) appealed against a decision ([2006] EWCA Civ 331, [2007] QB 46) that the respondent widow (C) was entitled to recover damages under section 1 of the Fatal Accidents Act 1976 in respect of the financial loss attributable to the suicide of her late husband (D).



D had been employed by V as a maintenance engineer. He had been struck on the head by a machine he was working on. After the accident, D underwent reconstructive surgery. He remained disfigured and suffered from post traumatic stress disorder. He became depressed and his condition worsened over time. He committed suicide nearly six years after the accident.



He had begun proceedings against V, claiming damages for the physical and psychological injuries which he had suffered. After D's death, C was substituted as claimant. V accepted that the accident involved a breach of the duty owed to D to take reasonable care to avoid causing him personal injury, including psychological injury. It was agreed that the depressive illness from which D suffered was caused by the accident and that his depressive illness drove him to take his own life. The issue dividing the parties was whether the damages claimed by C under the act in respect of the financial loss attributable to D's suicide were too remote. V submitted that D's suicide (1) fell outside the duty of care owed to him by V; (2) was not an act which was reasonably foreseeable and therefore not one for which V should be held liable; (3) broke the chain of causation and constituted a novus actus interveniens; (4) was an unreasonable act which broke the chain of causation; (5) was the voluntary act of the deceased, and so precluded by the principle volenti non fit injuria; (6) amounted to contributory negligence.



Held: (1) V owed D a duty to avoid causing him psychological as well as physical injury. Its breach caused D injury of both kinds. While D was not, at the time of his death, insane in M'Naghten terms, nor was he fully responsible. He acted in a way which he would not have done but for the injury from which V's breach caused him to suffer. That being so, his conduct in taking his own life could not be said to fall outside the scope of the duty which V owed him.



(2) Depression, possibly very severe, was a foreseeable consequence of V's breach. It was not incumbent on C to show that suicide itself was foreseeable. A tortfeasor who reasonably foresaw the occurrence of some damage need not foresee the precise form which the damage might take, Hughes v Lord Advocate [1963] AC 837 HL applied. Some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what was reasonably foreseeable, but suicide could not be so regarded. It was not a usual manifestation, but it was not uncommon. Furthermore, in the circumstances suicide was reasonably foreseeable by V, considering the possible effect of such an accident on a hypothetical employee.

(3) Suicide could be a novus actus if a person took his own life as a conscious decision in the absence of any disabling mental illness, Wright v Davidson [1992] 88 DLR (4th) 698 considered. However, D's suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness, which impaired his capacity to make reasoned and informed judgments about his future, such illness being a consequence of V's tort.



It was not unfair to hold V responsible for that consequence of its breach of duty. For C to be able to recover, it was not necessary to show that D was insane in M'Naghten terms. (4) Since the suicide was not a novus actus, it was impossible to hold that the damages attributable to the death were rendered too remote because the deceased's conduct was unreasonable. (5) D had not consented to the accident and injury which befell him. Nor did he consent to his suicide which was the result of a psychological condition induced by V's breach of duty. (6) It was not appropriate for the court to decide the contributory negligence issue on which the courts below had made no findings.



(Per Lords Scott, Mance and Neuberger) A deduction for contributory negligence could be appropriate in circumstances of deliberate suicide committed in a state of depression induced by an accident, Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 HL considered.



Appeal dismissed.



Jeremy Cousins QC, John Brennan, Justin Kitson (instructed by Moran & Co) for the appellant; John Foy QC, Andrew Ritchie, Robert McAllister (instructed by Rowley Ashworth) for the respondent.





CIVIL PROCEDURE

Real property - assets recovery - burden of proof - civil recovery proceedings - conspiracy to defraud

(1) Ayodele Olusegun Olupitan (aka (1) Segun Olubitan (2) Abayomi Olufemi Olupitan) (2) Omotayo Abidemi Makinde v Director of the Assets Recovery Agency: CA (Civ Div) (Sir Igor Judge (President of the Queen's Bench Division), Lords Justice Carnwath, Toulson: 22 February 2008

The appellants appealed against a decision ([2007] EWHC 162 (QB), [2007] 157 NLJ 258) upholding a civil recovery order under part 5 of the Proceeds of Crime Act 2002 in relation to two properties. The respondent director sought a civil recovery order on the basis that the first appellant (O), but not the second appellant (M), had undertaken unlawful conduct as defined in section 241 of the act, consisting of mortgage fraud, conspiracy to defraud and money laundering. That conduct was alleged to have led directly to the purchase of real property or to have created the funds from which real property was purchased. O had been convicted of conspiracy to defraud. The prosecution had conceded for the purpose of sentence that O had only joined the conspiracy on the day of his arrest. The judge made a civil recovery order in relation to a property bought in the name of O, which was let, and another property where O lived with M and their children.



The judge found that there was no evidence of a lawful source of the funds used to purchase the first property, that M had obtained a mortgage in respect of the second property by fraud, and that O was the source of funds which M had contributed to the purchase of the second property. The judge was satisfied that O had no legitimate source of income and that the properties were recoverable.



The appellants submitted that (1) it was necessary for the director to allege and prove a specific criminal offence; (2) the director was bound by the concession in the criminal proceedings; (3) the judge should not have made a recovery order in respect of the first property because it had been purchased well before the only criminal conduct of which specific evidence was provided, and in order to attribute the purchase to criminal conduct the judge had reversed the burden of proof; (4) the judge should not have made a recovery order in respect of the second property because a mortgage fraud did not result in any recoverable property; (5) the judge should not have ordered M to pay the director's costs.



Held: (Lord Justice Carnwath dissenting in relation to the second property in so far as it was funded by the mortgage loan) (1) The director did not have to allege the commission of any specific criminal offence, provided there were set out the matters alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained, Director of the Assets Recovery Agency v Green [2005] EWHC 3168 (Admin), Times, February 27 (2006), applied; Szepietowski v Director of Assets Recovery Agency (Costs) [2007] EWCA Civ 766, Times, August 21 (2007), followed.



That approach followed from the wording of the act. Use of the term unlawful conduct, rather than reference to a criminal offence or offences, was a clear indication that the power was not so restricted. In the present case, there was a sufficient indication in the claim form of the kinds of conduct relied on by the director. (2) The judge had been entitled to hold that the director was not to be equated with the Crown as prosecutor and that therefore the director was not bound by the prosecution concession in the criminal proceedings. (3) The judge was not required to find a direct link with any offence or offences, but rather a causal connection with criminal conduct of the kinds relied on by the director. He had been entitled to find that O had been involved in the conspiracy to defraud longer and more deeply than the prosecution had conceded.



In the absence of any other explanation or indication of a legal source, the judge had been entitled to infer, on the balance of probabilities, that there was a criminal explanation for the substantial funds passing through O's account in the earlier period which had been used to purchase the first property. (4) In relation to the second property, it had not been Parliament's intention that, if a property was acquired in part with untainted money and in part with tainted money, the purchaser should be deprived of the portion of the value of the property derived from untainted money. The judge had been entitled to hold that the source of funds for the deposit and mortgage repayments was O and that the money was tainted. The property was acquired with the assistance of money loaned by the building society as the result of a fraud by O. The argument that a mortgage fraud did not result in recoverable property, because the fraudster never obtained any property in the purchase money which passed to the vendor on completion, was rejected. It did not matter if the mortgage loan did not actually pass through the hands of the borrower. The property was nevertheless within the ambit of the act. (5) There was no adequate reason for overturning the judge's costs order against M.



Appeal dismissed.



Ivan Krolick (instructed by Stephen Fiddler & Co) for the appellants; James Eadie (instructed by in-house solicitor) for the respondent.