From The Times
February 2, 2010

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Chancery Division

Published February 2, 2010

Megtian Ltd (in Administration) v Commissioners of Revenue and Customs

Before Mr Justice Briggs

Judgment January 15, 2010

A person who knew that a transaction in which he participated was connected with fraudulent tax evasion was a participant in that fraud because he had a dishonest state of mind. By contrast, a person who merely ought to have known of the relevant connection was not dishonest, but had a state of mind broadly equivalent to negligence.

Mr Justice Briggs so held in the Chancery Division following the conclusion of the hearing of the first part of the appeal of the claimant, Megtian Ltd, against the dismissal by a VAT and Duties Tribunal of its appeal against the decision of the Commissioners of Revenue and Customs to disallow claims for input tax on the basis that the transactions to which the claims related were connected with the fraudulent evasion of value-added tax.

Mr Michael Patchett-Joyce for Megtian; Mr Mark Cunningham, QC and Mr Daniel Margolin for the Revenue.

MR JUSTICE BRIGGS said that the fraud alleged was the missing trader fraud, an abuse of the VAT system which had caused enormous losses to the Revenue. The claimant’s third ground of appeal arose in connection with the Revenue’s requirement to establish, in relation to contra-trading cases, that a broker, in the position of the claimant, knew or ought to have known that its transactions were connected with fraud.

There were many cases in which a participant in a sophisticated fraud was shown to have actual or blind-eye knowledge that the transaction in which he was participating was connected with that fraud, without knowing, for example, whether his chain was a clean or dirty chain, whether contra-trading was necessarily involved at all, or whether the fraud had at its heart merely a dishonest intention to abscond without paying tax, or that intention plus one or more multifarious means of achieving a cover-up while the absconding took place.

Similarly, his Lordship considered that there were likely to be many cases in which facts about the transaction known to the broker were sufficient to enable it to be said that the broker ought to have known that his transaction was connected with a tax fraud, without it having to be, or even being possible for it to be demonstrated precisely which aspects of a sophisticated multi-faceted fraud he would have discovered, had he made reasonable inquiries.

Sophisticated frauds were not, as a matter of law, invariably susceptible to being carved up into self-contained boxes even though, on the facts of particular cases that might be an appropriate basis for analysis.

It was important to bear in mind that when the phrase “knew or ought to have known” was applied for the purpose of identifying the state of mind of a person who had participated in a transaction which was in fact connected with a fraud, it encompassed two very different states of mind.

The distinction between dishonesty and negligence was of fundamental importance, even in cases such as the present where proof of either of them would suffice for the opposing party’s purpose.

None of the grounds of appeal argued constituted any basis for allowing the appeal.

Solicitors: Khan Partnership LLP; Howes Percival, Norwich.

From The Times
February 2, 2010

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Queen’s Bench Divisional Court

Published February 2, 2010

Regina (Ethos Recycling Ltd) v Barking and Dagenham Magistrates Court

Before Lord Justice Scott Baker and Mr Justice Cranston

Judgment November 13, 2009

Service by a local authority of a notice to abate an alleged statutory nuisance did not comprise the institution of summary proceedings.

The Queen’s Bench Divisional Court so held in dismissing a claim for judicial review by the claimant, Ethos Recycling Ltd, of the decision of District Judge Woolard, sitting in Barking and Dagenham Magistrates Court on February 5, 2009, in which he held that the provision in section 79(10) of the Environmental Protection Act 1990 that “a local authority shall not without the consent of the secretary of state institute summary proceedings” did not include the service of an abatement notice by the local authority under section 80 of that Act.

The claimant brought a claim for judicial review of his decision on the basis that an abatement notice, served under section 80, which itself was headed “summary proceedings for statutory nuisances” fell within the term “summary proceedings” in section 79(10) of the Act, so that the consent of the secretary of state for the Environment, Food and the Regions should have been obtained by the local authority.

Ms Samantha Riggs for Ethos Recycling; Mr Shaun Murphy, solicitor, for Barking and Dagenham London Borough Council, as an interested party; the district judge did not appear and was not represented.

LORD JUSTICE SCOTT BAKER, giving the judgment of the court, said that the legislative history did not support the claimant’s construction of section 79(10). Where a local authority had received a number of complaints and decided to issue an abatement notice, it would be wholly artificial to require it first to obtain the consent of the secretary of state.

Such a step would inevitably take time and frequently time was of the essence. Neighbours complaining to a local authority expected prompt action.

The secretary of state’s consent should be obtained before the commencement of proceedings in the magistrates court for failure to comply with the abatement notice but not at the earlier stage of service of the notice.

The district judge had not erred in his construction of section 79(10) of the Act.

Solicitors: D. M. H. Stallard; Edwards Duthie, East Ham.

From The Times
February 2, 2010

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Court of Appeal

Published February 2, 2010

JA (Ivory Coast) v Secretary of State for the Home Department

ES (Tanzania) v Same

It was necessary to weigh in the balance how far the proportionality of removal of an individual from the jurisdiction was affected by the history of any compassionate grant and renewal for medical treatment of leave to remain.

The Court of Appeal (Lord Justice Sedley, Lord Justice Longmore and Lord Justice Aikens) so held in a reserved judgment on December 14, 2009, when allowing an appeal brought by JA against a decision of the Asylum and Immigration Tribunal on December 10, 2009, but dismissing an appeal brought by ES against a decision of the same tribunal on February 18, 2009. JA’s case was remitted to the tribunal for redetermination.

LORD JUSTICE SEDLEY said that the question was how far in each case the proportionality of removal was affected by the history of the compassionate grant and renewal of leave to remain for treatment, having regard to the impact both of that history and of the proposed discontinuance of treatment on the individual’s private life.

From The Times
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February 1, 2010

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Court of Appeal

Published February 1, 2010

Regina (RD and PM) v Secretary of State for Work and Pensions

Regina (EM and Others) v Same

Before Lord Justice Waller, Lord Justice Carnwath and Lord Justice Patten

Judgment January 27, 2010

The distinction made between convicted prisoners serving part of their sentences in psychiatric hospital and non-prisoners in respect of eligibility for welfare benefits was justifiable.

The Court of Appeal so stated when:

(i) allowing the appeal of RD and PM, post-tariff lifers transferred to psychiatric hospital after expiry of their tariffs, against a decision of Mr Justice Burnett ([2008] EWHC 2635 (Admin)) that the for a post-tariff lifer there was no appropriate date when disqualification from benefits did not apply, and (ii) dismissing the appeal of EM and others, all convicted prisoners transferred under the Mental Health Act 1983 to psychiatric hospitals, against a decision of Mr Justice Burnett ([2009] EWHC 454 (Admin)) that legislation removing entitlement to social security benefits from psychiatric patients transferred to hospital after receiving a prison sentence complied with the European Convention on Human Rights.

Mr Paul Bowen for RD and PM; Mr Martin Chamberlain for the Secretary of State for Work and Pensions.

Mr Richard Gordon, QC, for EM and others; Miss Marie Demetriou for the secretary of state.

LORD JUSTICE CARNWATH said that the appeals related to treatment of convicted prisoners serving part of their sentences in psychiatric hospital by virtue of action taken under the Mental Health Act 1983.

Discrimination The issue concerned two categories of convicted sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the 1983 Act and those subject to hospital and limitation directions under section 45A of that Act, as inserted by section 46 of the Crime (Sentences) Act 1997.

The first were transferred after sentence and generally serving time in prison; the second were subject to a direction at the same time as they were sentenced.

They were to be contrasted on the one hand, with convicted prisoners who were serving their sentences in prison and on the other, patients detained in hospital under purely civil law powers, or detained under section 37 of the 1983 Act, namely, following conviction but without any sentence having been passed.

The Social Security (Hospital In-Patients) Regulations (SI 2005 No 3360) brought changes to the benefit system after April 2006 affecting the above categories of patients. The changes were beneficial to civil patients, including section 37 patients, but detrimental to section 47 and section 45A prisoners who lost their entitlement to income-related benefits.

For the purposes of establishing discrimination in breach of article 14 and article 1 of the First Protocol to the European Convention, the test was whether there was a deference of treatment and whether it could be justified.

His Lordship found that the relevant difference was between patients who were prisoners and those who were not. The issue of whether that treatment could be justified should be looked at broadly.

His Lordship agreed with the judge that transferred patients had all been sentenced to a term of imprisonment by a court, by contrast with those made subject to a hospital order or those who were civil detainees.

The secretary of state had decided as a matter of policy that while a prisoner was deprived of his liberty in consequence of a sentence of imprisonment, he should be treated for benefits purposes in exactly the same way wherever he happened to be detained.

Thus, for the purpose of benefits it mattered not whether the detainee was in a penal establishment, a psychiatric hospital or an ordinary hospital. The question was not whether he was being punished at any given moment but whether he remained subject to the sentence of the court. Were it not for the mental disorder, the person concerned would be in prison serving the sentence imposed by the court.

Construction The issue concerned a more limited sub-set of transferred prisoner, so-called post-tariff lifers. Income support was reduced to nil in respect of a person detained under section 45A or 47 of the 1983 Act but not if his detention continued after the date which the secretary of state certified would have been the earliest date at which he could have been released in respect of, or from the prison sentence, if he had not been detained in hospital.

The issue was what was the meaning of “could have been released in respect of, or from the prison sentence” in paragraph 2A of Schedule 7 to the Income Support (General) Regulations (SI 1987 No 1967), as substituted by regulation 4(5) of the 2005 Regulations.

The judge held that for a determinate sentence prisoner that was the date when he would have been released disregarding the possibility of an earlier discretionary release or the addition of time for bad behaviour, but that for a lifer there was no such date, because release was not a matter of right but was always dependent on an positive decision of the Parole Board.

In his Lordship’s judgment, the natural reading of the provision was as a reference to the date at which the Parole Board was first able to direct release, ie the end of the tariff period.

The appeal would be dismissed on the discrimination issue and allowed on the construction issue.

Lord Justice Waller and Lord Justice Patten agreed.

Solicitors: Bindmans; Solicitor, Department for Work and Pensions.

Scott-Moncrieff Harbour & Sinclair, Kentish Town; Solicitor, Department for Work and Pensions

From The Times
February 1, 2010

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Court of Appeal, Criminal Division

Published February 1, 2010

Regina v Hussain (Munir)

Regina v Hussain (Tokeen)

Where a case fell outside the scope of the official sentencing guidelines, the ancient principles of justice and mercy fell to be applied.

The Court of Appeal, Criminal Division (Lord Judge, Lord Chief Justice, Mrs Justice Swift and Mr Justice Sweeney) so held on January 20, 2010, when dismissing an application by Munir Hussain for permission to appeal, and dismissing an appeal by Tokeer Hussain, against their convictions on September 10, 2009 at Reading Crown Court (Judge Reddihough and a jury) of causing grievous bodily harm to Walid Salem, contrary to section 18 of the Offences Against the Person Act 1861, but allowing appeals against sentences of imprisonment for two years six months and three years three months respectively, substituting twelve months, suspended for two years, and two years respectively.

THE LORD CHIEF JUSTICE said that the case had nothing to do with rights to defend one’s family or home, but involved a retaliatory attack against a burglar.

The jury had been entitled to conclude on the evidence that the defendants had been participants in the attack, and there was no lurking doubt about the safety of the convictions.

But the defendants were of impeccable previous character and the circumstances were wholly exceptional. Where a case fell outside the scope of the official sentencing guidelines, the ancient principles of justice and mercy fell to be applied. The call for mercy should be answered and the sentences reduced.

From The Times
January 29, 2010

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Supreme Court

Published January 29, 2010

HM Treasury v Ahmed and Others

Same v al-Ghabra

Regina (Youssef) v HM Treasury

Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Mance

Judgment January 27, 2010

The Treasury exceeded its powers by authorising, in on the test of reasonable suspicion alone, a major inroad into the rights of individuals to dispose of their assets as they chose and to live free of executive interference. The Terrorism (United Nations Measures) Order (SI 2006 No 2657) was accordingly to be quashed.

The Treasury also exceeded its powers in providing, under article 3(1)(b) of the Al-Qaeda and Taleban (United Nations Measures) Order (SI 2006 No 2952) for the designation of an individual, for the purposes of freezing his assets, on the basis of his listing by the United Nations Security Council without providing access to a court to challenge the listing. That article was also to be quashed.

The Supreme Court so held, Lord Brown dissenting in part, when allowing appeals:

(1) by Mohammed Jabar Ahmed, Mohammed Azmir Khan, Michael Marteen, formerly known as Mohammed Tunveer Ahmed and Mohammed al-Ghabra from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, and Lord Justice Wilson, Lord Justice Sedley dissenting in part) (The Times November 12, 2008; [2009] 3 WLR 25) which allowed in part the Treasury’s appeal from Mr Justice Collins The Times May 5, 2008; [2008] 3 All ER 361) who, in actions by (i) Mr al-Ghabra quashed the Terrorism Order and the Al-Qaeda and Taleban Order as ultra vires section 1(1) of the United Nations Act 1946, and (ii) the other three quashed the Terrorism Order as ultra vires; and (2) by the Treasury, from Mr Justice Owen ([2009] EWHC 1677 (Admin)) who granted an application by Haini El Sayed Sabaei Youssef for judicial review, declared the Al-Qaeda Order unlawful in respect of him and, under the leapfrog procedure, granted a certificate under section 12 of the Administration of Justice Act 1969.

By article 25 of the UN Charter, member states were bound to carry out Security Council resolutions; section 1 of the 1946 Act empowered the making of Orders in Council to make such provision as appeared necessary or expedient for enabling such measures to be effectively applied.

The Terrorism and Al-Qaedo Orders were purportedly made under that section to give effect to Security Council resolutions designed to prevent and suppress the financing of terrorism. They provided in wide terms for the freezing of financial assets and economic resources of those the Treasury reasonably suspected of involvement in terrorist acts.

By article 3(1)(b) of the Al-Quaeda Order, persons on the list compiled by the Security Committee sanctions committee, the 1267 Committee, from individuals put forward by member states were automatically designated under the Al-Quaida Order. No provision was made for a judicial challenge to that.

Mr Tim Owen, QC and Mr Dan Squires for Mr Ahmed, Mr Khan and Mr Marteen; Mr Rabinder Singh, QC, Mr Richard Hermer, QC and Mr Alex Bailin for Mr al-Ghabra; Mr Jonathan Swift, Sir Michael Wood and Mr Andrew O’Connor for the Treasury; Mr Raza Husain and Mr Dan Squires for Mr Youssef: Mr Michael Fordham, QC, Ms Shaheed Fatima and Mr Iain Steele for JUSTICE, intervening.

LORD HOPE said that the crucial question was whether section 1 of the 1946 Act conferred power on the executive without any parliamentary scrutiny to give effect in the United Kingdom to decisions of the Security Council which were targeted against individuals.

Th closer the measures came to affecting the individual’s basic rights the more exacting that scrutiny had to become. If the rule of law was to mean anything, decisions as to what was necessary or expedient could not be left to the uncontrolled judgment of the executive: see R v Secretary of State for the Home Department, Ex parte Simms (The Times July 9, 1999; [2000] 2 AC 115, 131).

The fact that section 1 was designed to enable the UK to fulfil its obligations to implement Security Council resolutions did not diminish that essential principle. Full honouring of those obligations was an imperative but the resolutions were the product of a body of which the executive was a member as the UK’s representative.

Approaching the language of section 1 on the basis that Parliament did not surrender its legislative powers to the executive any more than necessarily followed from the words used, “necessary” and “expedient” called for the exercise of judgment; but that did not mean that exercise was unlimited.

The wording of the Order had to be tested precisely against that of the Security Council resolution and in the light of the article 25 obligation. A more fundamental point was whether the present kind of measures should have been made by Order in Council at all.

The Treasury had not used its powers under enactments such as the Anti-terrorism, Crime and Security Act 2001 which was more precisely worded and contained various safeguards.

Mr Swift said that was a matter for political control; by that he meant it was no business of the court to interfere. His Lordship disagreed. The rule of law requires that the actions of the Treasury in the present context should be subjected to judicial scrutiny.

Security Council resolution 1373 (2001) was not phrased in terms of reasonable suspicion. It referred to persons who “commit, or attempt to commit, terrorist acts”. The standard of proof was not addressed; how those who fell within its ambit were to be identified was left to member states.

It was not necessary to introduce the reasonable suspicion test to reproduce what the resolution required. It might have been expedient to do so; but widening the scope of the Order in that way was bound to have a real and devastating impact on those exposed to the resulting restrictions.

Those restrictions struck at the heart of the individual’s basic right to live his own life as he chose. Designated persons were effectively prisoners of the state; their freedom of movement was severely restricted without access to funds and the effect on them and their families could be devastating.

By introducing the reasonable suspicion test as a means of giving effect to the resolution, the Treasury exceeded its powers under section1(1). It was a clear example of an attempt to affect adversely the basic rights of the citizen without the clear authority of Parliament.

The question common to both Mr al-Ghabra and Mr Youssef was whether the Al-Quaeda Order was ultra vires section 1 because there was no effective judicial remedy against a listing by the UN.

His Lordship rejected Mr Singh’s argument under the Human Rights Act 1998 since the court took its guidance from R (Al-Jedda) v Secretary of State for Defence (The Times December 13, 2007; [2008] AC 332) which held that the obligation on member states under article 25 was, by virtue of article 103, to prevail over any other international agreement, including the Convention.

Mr Singh argued with regard to the position in domestic law that the obligation to give effect to Security Council resolutions had to respect the basic premises of our own legal order: in particular the right to peaceful enjoyment of property which could only be interfered with by clear legislative words; and the right of unimpeded access to a court. Both embraced the principle of legality. So it was not open to the Treasury to use its powers under the general wording of section 1 to subject individuals to a regime having those effects.

The regime to which Mr al-Ghabra was subjected deprived him of access to an effective remedy. What he needed was a means of subjecting the listing to judicial review. Under the system currently operated by the UN, that was denied him.

Article 3(1)(b) of the Al-Quaeda Order, which had that effect, was ultra vires section 1 and would be quashed. The same result followed in Mr Youssef’s case.

Lord Walker and Lady Hale agreed. Lord Phillips, Lord Rodger and Lord Mance delivered judgments concurring in the result; Lord Brown dissented in part.

Solicitors: Birnberg Peirce & Partners; Tuckers; Treasury Solicitor; Birnberg Peirce & Partners; Clifford Chance LLP.

From The Times
January 28, 2010

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Supreme Court

Published January 28, 2010

In re Guardian and Media News Ltd and Others

Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Kerr of Tonaghmore

Judgment January 27, 2010

Where individuals challenged anti-terrorism asset-freezing orders, the general public interest in publishing a report of the proceedings in which they were named justified curtailing their rights to private life.

The Supreme Court so held when granting an application to set aside anonymity orders by Guardian and Media News Ltd, Associated Press, Times Newspapers Ltd, Bloomberg News, Index on Censorship and Dow Jones and Company, Inc, dated September 28, 2009, on the hearing of appeals by the claimants, Mohammed Jabar Ahmed, Mohammed Azmir Khan, Michael Marteen, formerly known as, Mohammed Tunveer Ahmed, Mohammed al-Ghabra and Haini El Sayed Sabaei Youssef, in proceedings against HM Treasury.

The claimants contended that the anonymity orders were necessary because identification would infringe their article 8 rights under the European Convention on Human Rights guaranteeing respect for their private life.

The first three claimants were brothers, designated under the Terrorism (United Nations Measures) Order (SI 2006 No 2657) as persons whom the Treasury suspected of actually or potentially facilitating terrorist acts and in respect of whom asset-freezing orders were made. When those were challenged, Mr Justice Collins (The Times May 5, 2008; [2008] 3 All ER 361) made anonymity orders which were continued by the Court of Appeal (The Times November 12, 2008; [2009] 3 WLR 25).

Mr al-Ghabra, also so designated, was named in a Bank of England press notice publicising the Treasury’s asset-freezing direction against him. He was subsequently added to the consolidated list by the United Nations Security Council sanctions committee as a person associated with al-Qaeda and so became a designated person under the alQaeda and Taleban (United Nations Measures) Order (SI 2006 No 2952). In view of the press notice, the application in respect of him was granted at the outset of the hearing of the substantive appeals.

Mr Youssef was also added to the consolidated list and was the subject of a Treasury direction under the al-Qaeda Order which the Bank of England also publicised. In view of that publication, the Supreme Court, on hearing the application, rejected his claim to anonymity granted by Mr Justice Owen ([2009] EWHC 1677 (Admin)).

Mr Geoffrey Robertson, QC and Mr Anthony Hudson for the applicants; Mr Hugh Tomlinson, QC and Mr Dan Squires for the claimants; Mr Jonathan Swift, Sir Michael Wood and Mr Andrew O’Connor for the Treasury.

LORD RODGER, giving the judgment of the court, said that, although the first two claimants did not appear to have any substantial article 8 interest to counteract the press interest in publishing a full report of the proceedings, revealing their identity would incidentally reveal that of Mr Marteen.

He lived with his ex-wife and family and was involved in daily family life. He feared that revealing his designation might result in his own and their loss of contact with the local Muslim community, and seriously damage his reputation in circumstances where he had not been charged with or convicted of any criminal offence and so could not challenge allegations against him.

The general rule, apart from a number of statutory exceptions, was that judicial proceedings were held in public; parties were named in judgments and their names would be given in newspaper and law reports.

Under the Human Rights Act 1998, article 8.1 required public authorities, including the court, to respect private and family life. Mr Marteen did not need to ask for an anonymity order to prevent the court itself from infringing his article 8 rights.

If the court considered that, by publishing its judgment in the usual form, it would itself act unlawfully under section 6 of the Act, it would not issue orders to other people but would ensure that it acted lawfully by taking appropriate steps of its own. Here the courts had gone further: they also made anonymity orders addressed to other people: in effect, to the press.

The power to make such orders was one way that the United Kingdom fulfilled its positive obligation under article 8: see Von Hannover v Germany (Application No 58320/00) ((2005) 40 EHRR 1); In re S (a Child) (Identification: Restrictions on publication) (The Times October 29, 2004; [2005] 1 AC 593) and In re British Broadcasting Corporation: Attorney General’s Reference No 3 of 1999 (The Times June 18, 2009; [2009] 3 WLR 142).

The applicants claimed that the orders interfered with their article 10.1 right; but under article 10.2 that right could be subjected to restrictions which were prescribed by law and were necessary in a democratic society for the protection of the reputation or rights of others, including their article 8 rights, In reliance on Karakó v Hungary (Application No 39311/05) (unreported, April 28, 2009), Mr Robertson submitted that article 8 did not confer a right to protection of reputation. However, in that case the European Court of Human Rights had not departed from its earlier jurisprudence; it accepted that some attacks on reputation could be so seriously offensive as to have an inevitable direct effect on the victim’s private life, but that that was not so on the facts before them.

In Mr Marteen’s case the alleged effect on his reputation was, he said, one of the reasons why a report that identified him would seriously affect his private life. On that basis the report would engage article 8.1.

Both articles 8 and 10 were in play and the court had to weigh the competing claims of the parties under them.

Mr Marteen did not challenge the fact that the freezing orders had been made; so the effect of the anonymity order was to prevent the publication of factual matters he could not challenge.

The orders were blanket orders proceeding on the basis that mere publication of any report of the proceedings which identified any of the claimants as a person who facilitated terrorism would infringe his article 8 rights.

The court had to be satisfied that so far-reaching a ban was necessary in a democratic society to ensure due respect for those rights.

The court referred to the guidance in the Von Hannover case, which echoed that expressed in Campbell v MGN Ltd (The Times May 7, 2004; [2004] 2 AC 457). Since neither article had, as such, precedence over the other the weight to be attached to the rival interests under the articles would depend on the facts.

Where the publication concerned a question of general interest article 10.2 scarcely left any room for restrictions on freedom of expression.

While Mr Marteen’s private and family life were interests which had to be respected, publication of a report of the proceedings, including his identification, was a matter of general public interest.

He argued that the fact he could not challenge the allegation against him was crucial: the press should not reveal that the Treasury suspected him of facilitating terrorism since that allegation would never be brought to trial and could not be effectively challenged; that an order which kept his identity confidential, but otherwise allowed a full report to be published would be a fair compromise that gave weight to his article 8 right and to the interest of the public in being informed about the proceedings.

Article 10 arguments against an anonymity order included the importance, as a reporting technique, of the press being able to relate stories about particular individuals, so as to capture the attention of readers, and the public’s legitimate interest in knowing about those challenging the 2006 Orders. At present the public were denied information relevant to the debate on the merits of the system which was created and operated in their name.

In balancing all the factors relating to Mr Marteen’s article 8 rights and the article 10 rights of the press, there was a powerful general public interest in identifying him in any report of the proceedings which justified curtailing to that extent his and his family’s article 8 rights.

Solicitors: Finers Stephens Innocent LLP; Birnberg Peirce & Partners; Treasury Solicitor.

From The Times
January 27, 2010

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Court of Appeal

Published January 27, 2010

Novitskaya v Brent London Borough Council, Secretary of State for Work and Pensions, interested party

A retrospective claim for housing benefit could effectively be made by a refugee without completing the formal claim form at the same time.

The Court of Appeal (Lord Justice Mummery, Lady Justice Arden and Lord Justice Elias) so stated on December 1, 2009 in allowing the appeal of Irina Novitskaya, from Mrs Ann Ramsay, Deputy Social Security and Child Support Commissioner, who held, on October 24, 2008, that a general letter from the claimant seeking housing benefit after being granted refugee status had not been a backdated benefit claim for £29,000.

LADY JUSTICE ARDEN said that the distribution of benefits was different from many other areas of civil law. It was concerned with sustaining members of the community whom Parliament had decided should be sustained through the welfare state.

Where provision was made for defective claims, the function of a claim was not only to meet conditions on which some right to a benefit depended. It might have a lesser objective, namely that of placing the authority which was required to scrutinise a claim in a position to know that a claim for a particular benefit was being made.

There was no justification for a requirement that every benefit being claimed should be expressly named.

From The Times
January 27, 2010

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Court of Appeal

Published January 27, 2010

Land Securities plc and Others v Fladgate Fielder (a Firm)

Before Lord Justice Mummery, Lord Justice Moore-Bick and Lord Justice Etherton

Judgment December 18, 2009

Property developers could not sue a party, who had challenged the grant of planning permission, for abuse of process or bringing proceedings maliciously, even if the motive of the challenger was to achieve a collateral objective.

The Court of Appeal so stated dismissing the appeal of the claimants, Land Securities plc, L. S. Wilton Plaza Ltd and L. S. Park House Ltd from Mr Bernard Livesey, QC, ([2009] EWHC 577 (Ch)), who, sitting as a deputy Chancery Division judge, dismissed their action against the defendants, Fladgate Fielder, a firm of solicitors, seeking damages for abuse of process by threatening and bringing proceedings against Westminster City Council for judicial review of planning permission granted to the claimants for development of a site in Victoria, London.

The property developers claimed that those proceedings were to put pressure on them to assist the solicitors to relocate their own offices in Victoria.

On January 31, 2006, Land Securities applied for planning permission to develop Park House by the erection of a modern retail, office and residential block with two basements and 10 floors above ground level around the same time the defendants were planning to relocate their office and to dispose of their leasehold of substantial value.

Mr Christopher Nugee, QC and Mr Jonathan Evans for the property developers; Mr Alan Steinfeld, QC and Mr Tom Leech for the solicitors.

LORD JUSTICE ETHERTON said that there was no general tort of malicious prosecution of civil cases.

On policy grounds, the tort of malicious prosecution in relation to civil cases was confined to the three well established heads of damage recognised in Quartz Hill Consolidated Gold Mining Co v Beall ([1883] 11 QBD 674) and Gregory v Portsmouth City Council (The Times February 2, 2000; [2001] 1 AC 419).

The essential ingredients of a claim for malicious prosecution were the absence of reasonable and probable cause and that the proceedings had ended in favour of the person maliciously prosecuted.

Grainger v Hill ((1838) 4 Bing (NC) 211) had never been overruled; it was an authority for a tort of abuse of process. The only other case within this jurisdiction, in which the tort had arguably been successfully invoked, was Gilding v Eyre ((1861) 10 CBNS 592), over 140 years ago.

There was a public interest in bringing judicial scrutiny and remedies to bear on improper acts and decisions of public bodies. The permission stage of judicial review was intended to weed out claims without sufficient prospects of success.

The tort was not committed by a person who had instituted proceedings with a genuine interest in, and an intention to secure their successful outcome, even if the claimant’s motives were mixed and he had hoped that he might also achieve an objective not itself within the scope of the proceedings.

That was often the situation in judicial review proceedings concerning planning matters, as was recognised by the Court of Appeal in R (Mount Cook Land Ltd) v Westminster City Council (The Times October 16, 2003; [2004] 2 P & CR 22).

Lord Justice Mummery and Lord Justice Moore-Bick delivered concurring judgments.

Solicitors: Linklaters LLP; Barlow Lyde & Gilbert

From The Times
January 26, 2010

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Queen’s Bench Divisional Court

Published January 26, 2010

Syed v Director of Public Prosecutions

Before Mr Justice Collins and Mr Justice Silber

Judgment January 13, 2010

It was incumbent on police officers who were considering using force to enter and search premises, without a warrant, to establish first whether they had power to do so on account of some serious or dangerous incident having occurred. Police officers’ concern for the welfare of someone on the premises was not sufficient.

The Queen’s Bench Divisional Court so held when allowing an appeal by way of case stated by the defendant, Shaheed Syed, against his conviction by Oxford Justices on April 21, 2009, of assaulting a constable in the execution of his duty contrary to section 89(1) of the Police Act 1996.

In January 2009, three police officers had gone to an address having been informed by a member of the public that there were sounds of a disturbance there.

The defendant confirmed to the officers that he had had a verbal argument with his brother, who was inside. On further questioning he became evasive and tried to end the conversation.

The officers, although they had not seen evidence that any of the occupants who had come to the door had been harmed, or that any other person had caused or suffered injury, explained their power of entry and search for the purpose of “saving life or limb”, as authorised under section 17(1)(e) of the Police and Criminal Evidence Act 1984, and said that they intended to confirm the welfare of the defendant’s brother. The defendant struggled with the officers as he tried to prevent them entering.

Miss Lucy Tapper for Mr Syed; the prosecution did not appear.

MR JUSTICE COLLINS said that the test of “concern for the welfare” of someone within the premises, applied by the police in this case and accepted by the magistrates, was too low.

It was important to bear in mind that Parliament had set a high threshold in section 17(1)(e) of the 1984 Act because it was a serious matter for a citizen to have his house entered by the police against his will.

The expression “saving life or limb” was somewhat outmoded. However, it was plain that Parliament had intended that right of entry should be restricted to cases where the police apprehended that something of a serious nature had occurred or was likely to occur.

Although the defendant’s reaction might seem improper and different considerations might apply if the charge had simply been one of assault, the charge here was that of assaulting a police officer in the execution of his duty.

On the facts, the magistrates could not have properly concluded that the police had been acting in the execution of their duty and the conviction could not stand.

MR JUSTICE SILBER agreed. As had been observed by Mr Justice Stamp in Bourne v Norwich Crematorium Ltd ([1967] 1 WLR 691, 696) it was important not to distort meaning by divorcing the words being construed from the words surrounding them.

The neighbouring words in section 17(1)(e) of the Act, “preventing serious damage to property”, supported the conclusion that a forced entry was lawful only if the police officer believed that life or limb was seriously endangered.

Solicitors: Reeds, Oxford.

From The Times
January 26, 2010

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Court of Appeal

Published January 26, 2010

Chief Constable of Lincolnshire Police v Caston

There was no principle of employment law which dictated how generously or sparingly the power to enlarge time limits was to be exercised.

The Court of Appeal (Lord Justice Sedley, Lord Justice Longmore and Lord Justice Wall) so held in a reserved judgment on December 8, 2009, when dismissing an appeal brought by the employer, the Chief Constable of Lincolnshire Police against the dismissal by the Employment Appeal Tribunal (Mr Justice Underhill, President, sitting alone) on March 16, 2009, of the employer’s appeal against a decision of Employment Judge Peter Britton, at a Nottingham employment tribunal, on August 8, 2008, permitting the claimant, Natasha Caston, to present a claim for disability discrimination out of time.

LORD JUSTICE SEDLEY said that there was no principle of law which dictated how generously or sparingly the power to enlarge time was to be exercised.

In certain fields, the lodging of notices of appeal at the Employment Appeal Tribunal was a well known example, policy had led to a consistently sparing use of the power. That had not happened in relation to the power to enlarge the time for bringing proceedings in the employment tribunal.

From The Times
January 26, 2010

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The Court of Appeal, Criminal Division

Published January 26, 2010

Regina v Bell

The jurisdiction which permitted a second retrial, after the jury in two earlier trials had been unable to reach a verdict, had to be exercised with extreme caution.

The broad public interest in the administration of criminal justice led to the view that a third trial in such circumstances should be confined to the very small number of cases where the crime was extremely grave and where the evidence that the defendant had committed the crime, on any fair-minded objective judgment, remained very powerful.

The Court of Appeal (Lord Judge, Lord Chief Justice, Mr Justice Simon and Mr Justice Royce) so held on January 19, 2010, in dismissing an appeal by Philip Bell against his conviction on February 13, 2009, at Maidstone Crown Court (Judge Patience, QC and a jury) of murder.

THE LORD CHIEF JUSTICE said that the appellant submitted that the decision of the Crown to seek a third trial was an abuse of process and that the judge was wrong to conclude that notwithstanding that a second retrial would replicate much of what had gone on at the previous trial, that feature was outweighed by the fact that this was a case of the utmost seriousness, namely the alleged murder of a defenceless girl aged 17, for a sexual motive, and by the strong public interest in the achievement of a positive decision and thus finality, if possible.

Having examined not only the basis of the judge’s decision but also whether the effect of his decision was oppressive or unjust, their Lordships could discern no unfairness or oppression. The conviction was safe.

From The Times
January 25, 2010

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Queen’s Bench Division

Published January 25, 2010

Carey v HSBC Bank plc
and Associated Cases

Before Judge Waksman, QC

Judgment December 23, 2009

A creditor could satisfy its duty under section 78 of the Consumer Credit Act 1974, to give a debtor, when asked in writing, a copy of the running-account regulated credit agreement and other documents referred to therein, by providing a reconstituted version of the executed agreement, which might be from sources other than the signed version.

Judge Waksman, QC, sitting as a Queen’s Bench Division judge, so held in the Mercantile Court at Manchester, when considering six preliminary issues of law in eight selected cases concerning requests for copies of credit card agreements pursuant to section 78 of the 1974 Act: Emma Carey against HSBC Bank plc; Shafeel Younis against Barclays Bank plc; Samantha Conniff against Barclays Bank; Mohammed Adris against the Royal Bank of Scotland plc; Brian Backwell against the Royal Bank of Scotland; Rajan Mandal against the Royal Bank of Scotland; Andrew Light against MBNA Europe Bank Ltd; and Robert Atkinson against Bank of Scotland plc, with the Office of Fair Trading intervening in all cases. Additionally, two applications by the Royal Bank of Scotland and Barclays Bank that the claims of Mohammed Adris and Shafeel Yunis, respectively, had no real prospect of success and should be struck out were granted.

Mr David Uff and Mr James Malam for Carey, Conniff, Backwell and Light; Mrs Zoe Thompson and Miss Laura D’Cruz for Yunis; Mr Julian Gun Cuninghame and Mr Bradley Say for Adris, Mandal and Atkinson; Ms Sonia Tolaney and Mr James Macdonald for HSBC Bank; Mr Andrew Mitchell for Barclays Bank; Mr Bankim Thanki, QC and Ms Julia Smith for the Royal Bank of Scotland; Mr Geriant Howells for MBNA Europe Bank; Mr Fred Philpott for Bank of Scotland; Mr Stephen Neville for the Office of Fair Trading.

HIS LORDSHIP said that the purpose of his judgment was to give general guidance, in the context of the cases before him, in the hope that that would narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which had been stayed pending the outcome in the proceedings before his Lordship.

His Lordship reached a number of conclusions on the preliminary issues:

First, a section 78 copy had to contain the name and address of the debtor as it was at the time of the execution of the agreement but the creditor could provide those details from whatever source it had of those details and not necessarily from the executed agreement itself.

Second, the creditor need not, in complying with section 78, provide a document which would comply, if signed, with the requirements of the Consumer Credit (Agreements) Regulations (SI 1983 No 1553) as to form, as at the date the agreement was made.

Third, if an agreement had been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

Fourth, a breach by a creditor of section 78 did not of itself give rise to an unfair relationship within the meaning of section 140A of the 1974 Act, as inserted by section 19 of the Consumer Credit Act 2006.

Fifth, the court had jurisdiction to declare whether in a particular case, there had been a breach of section 78. It would depend on the circumstances of that case as to whether it would be appropriate to grant such a declaration.

Section 60 permitted regulations requiring prescribed terms to ensure that a debtor or hirer was made aware of the rights and duties conferred or imposed on him by the agreement, the amount and rate of the total charge for credit in the case of consumer credit agreements, the protection and remedies available, and any other matter which it was desirable for him to be aware of in connection with the agreement.

The following principles were correct in the context of section 61 in assessing whether those prescribed terms were “contained” in an executed agreement:

First, it was not sufficient for the piece of paper signed by the debtor merely to cross refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature.

Second, a document need not be a single piece of paper.

Third, whether several pieces of paper constituted one document was a question of substance not form. In particular, a physical connection between several pieces of paper was not necessary in order for them to constitute one document.

Fourth, a physical connection, or one or more physical connections, between several pieces of paper did not necessarily constitute them as one document. Accordingly, where the debtor’s signature and the prescribed terms appeared on separate pieces of paper, the questions of whether those pieces of paper together constituted one document was a question of substance and not form.

His Lordship held on the assumed facts of the first claim that the prescribed terms were so contained.

Solicitors: MSB Solicitors, Liverpool and BPS Solicitors, Manchester; Ascot Lawyers, Bracknell; Consumer Credit Litigation Solicitors, Manchester; Addleshaw Goddard LLP, Manchester; Lovells LLP; DLA Piper (UK) LLP, Manchester; Mr Howard Beale, Bank of America; SCM Solicitors, Brighton; Legal Department, Office of Fair Trading.

From The Times
January 22, 2010

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Queen’s Bench Division

Published January 22, 2010

Regina (Boyejo and Others) v Barnet London Borough Council

Regina (Smith) v Portsmouth City Council

Before Judge Milwyn Jarman, QC

Judgment December 15, 1009

References in documentation before decision-makers to disabilities or to rights of equality, was not sufficient to fulfil the statutory requirement of such recognition.

Judge Milwyn Jarman, QC, sitting as a deputy judge of the Queen’s Bench Division, so held in a reserved judgment when allowing claims for judicial review by:

(i) Juliana Boyejo, Roger Towler, Beryle Rush, Joseph Saunders and Jean Kemp of the decision of Barnet London Borough Council to replace on-site warden services in sheltered accommodation by peripatetic support with an alarm service, and (ii) Roland Smith against a decision of Portsmouth City Council to replace sleep-in night staff at each of its sheltered housing schemes for the most vulnerable older people with a mobile night service.

Mr Stephen Knafler for the Barnet claimants; Mr Jon Holbrook for Barnet.

Mr Stephen Knafler for Mr Smith; Mr Simon Sinnatt for Portsmouth.

HIS LORDSHIP said that although the claimants had submitted that Barnet and Portsmouth Councils failed to carry out their duty under section 49A(1)(d) and (f) of the Disability Discrimination Act 1995, inserted by section 3 of the Disability Discrimination Act 2005, to have due regard of disabled persons’ disabilities and encourage their participation in public life, the decision of the Divisional Court in R (Brown) v Secretary of State for Work and Pensions ([2009] PTSR 1506) demonstrated that a failure to refer to that section in the decisions or the report was not determinative of whether the duty had been performed, as long as the duty had been exercised in substance, with rigour and an open mind.

His Lordship rejected the defendants’ submission that the claimants were required to show an absence of due regard in the Wednesbury unreasonable sense ([1948] 1 KB 223) and, following R (Meany and Others) v Harlow District Council ([2009] EWHC 559 (Admin)) said that the Wednesbury test applied to the consideration of the counterveiling factors but not to the question of whether there had been the necessary due regard.

Although his Lordship was prepared to accept that such regard was had in the preparation of the respective reports in each case by officers who had had relevant training and experience and said they had the duty in mind, there had been a failure to bring the duties adequately to the attention of the decision-makers in these decisions.

Reference could be found to disabilities with diligent reading of the documentation available to the decision-makers, but it was not possible to discern from the reports, documentation or the decisions themselves that due regard had been had to the need to take account of disabled persons’ disabilities even where that involved treating disabled people more favourably than other persons.

Both councils had some regard to such impacts on residents as a group but neither had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities might involve treating disabled persons more favourably than others.

In his Lordship’s judgment, the references in the documentation before the decision-makers in each case to disabilities or to rights of equality, did not fulfil the requirement of such recognition nor did a general awareness among officers or decision-makers of the duty under section 49A(1). In both cases there had been a failure to comply with that duty and subsection (d) in particular, which was enough to vitiate each of the decisions.

Solicitors: Hossacks, Kettering; Ms Lannah Charles, New Southgate.

Hossacks, Kettering; Ms Suki Binjal, Portsmouth.

From The Times
January 19, 2010

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Court of Appeal

Published January 19, 2010

KH (Afghanistan) v Secretary of State for the Home Department

Mental illness among failed asylum seekers could not be regarded as an exceptional circumstance.

The Court of Appeal (Lord Justice Sedley, Lord Justice Longmore and Lord Justice Aikens) so held in a reserved judgment on December 14, 2009, when dismissing an appeal brought by KH against the decision of Mr Justice Burnett who decided on July 3, 2008, that new medical evidence provided by KH did not constitute a fresh claim for immigration purposes.

LORD JUSTICE LONGMORE said that the presence of mental illness among failed asylum seekers could not be regarded as exceptional.

Sadly, even asylum seekers with mental illness who had no families could hardly be regarded as “very exceptional”.

In order for a case to be very exceptional it would have to be exceptional inside the class of person with mental illness without family support. Perhaps a very old or very young person would qualify but hardly an ordinary adult.

From The Times
January 19, 2010

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Court of Session, Outer House

Published January 19, 2010

Axa General Insurance Ltd and Others v Lord Advocate and Others

Before Lord Emslie

Judgment January 8, 2010

Acts of the Scottish Parliament could be reviewed on common law grounds as well as those set out in the Scotland Act 1998.

Lord Emslie, sitting in the Outer House of the Court of Session, so held, refusing the prayer of the petition of Axa General Insurance Ltd, Axa Insurance UK plc, Norwich Union Insurance Ltd, Royal and Sun Alliance Insurance plc and Zurich Insurance plc, seeking the setting aside of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 which made asbestos-related pleural plaques an actionable personal injury.

The Lord Advocate appeared to oppose the petition. Several persons who had, or intended to raise claims for personal injury in relation to pleural plaques appeared as interested parties.

Mr Richard Keen, QC, Dean of the Faculty of Advocates, and Miss Jane Munro for the insurance companies; Mr Alan Dewar, QC and Mr James Mure, QC, for the Lord Advocate; Mr Aidan O’Neill, QC and Mr Christopher Pirie for the interested parties.

LORD EMSLIE said that in most cases pleural plaques were asymptomatic, confirming an individual’s exposure to asbestos in the past without, in themselves, being causative of anything.

According to long established common law principles, the delict or tort of negligence was not complete until an alleged breach of duty caused damage to an extent recognised by the law. In Rothwell v Chemical and Insulating Co Ltd (The Times October 24, 2007; [2008] 1 AC 281), the necessity for damage was affirmed by the House of Lords.

In Scotland only, the 2009 Act conferred on pleural plaques and on two other asymptomatic asbestos-related associated conditions the status of non-negligible and thus actionable injury.

The petitioners challenged the Act as an unwarranted contravention of the established need for real or material damage in order to complete a cause of action in negligence.

The challenge was advanced both at common law and under articloe 6 of the European Convention on Human Rights, guaranteeing the right to a fair trial, and article 1 of the First Protocol thereto, protecting rights to possessions.

In relation to competency, the question was whether the Scotland Act 1998 contained anything sufficient, whether by clear words or necessary implication, to oust the fundamental supervisory jurisdiction of the courts at common law.

In Somerville v Scottish Ministers ([2007] 1 WLR 2734; 2008 SC (HL) 45) there had been substantial agreement among their Lordships that, however self-contained, selfunderstanding and self-controlled the 1998 Act might appear to be, it did not provide, within its four walls, a fully comprehensive or definitive scheme for the regulation of challenges to the validity of legislation or functions: see Lord Hope of Craighead at paragraphs 17, 18 and 28.

The provisions of the 1998 Act had to be taken to have been drafted against the background of the rule of law, the supervisory role of the courts, and the various remedies already available under ordinary law and practice.

There was no good reason why common law challenges based on illegality or irrationality should not co-exist side by side with their Convention counterpart spelled out the 1998 Act.

Nonetheless, Acts of the Scottish Parliament were in the nature of primary legislation for Scotland and were are not open to challenge on the ground of irrationality short of the extremes of bad faith, improper motive or manifest absurdity: see R v Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council (The Times October 5, 1990; [1991] 1 AC 521).

The petitioners sought to take advantage of a series of Strasbourg decisions to the effect that a violation of article 6 might arise where a state interfered, by means of legislation, with the judicial determination of a current dispute: see Zielinski v France (Application No 24846/94) ((1999) 31 EHRR 532).

The petitioners submitted that the Scottish Parliament had intentionally interfered with the judicial determination of several hundred pleural plaques claims which had, since about 2006, been stayed to await the outcome of the Rothwell test cases.

There had been no violation of the rights guaranteed by article 6. In any event, it was only parties to litigation who could invoke article 6 and the insurers were not parties and not to be treated as equivalent to parties. Only former employers charged with negligence enjoyed party status.

It was not unreasonable or disproportionate for the Scottish Parliament to have designed the 2009 Act to make it applicable to those whose claims had not yet been determined even if an action had already been raised.

The petitioners’ capital resources were a possession for the purposes of article 1 of the first protocol; but the immunity from claims which the decision in Rothwell was said to provide were not. An immunity was not a property right to be equated with a claim.

The facilitation of pleural plaques claims was not a relevant interference with the petitioners’ capital resources. Such consequences were too remote from the legislation.

The Act allowed affected individuals to assert a delictual cause of action against negligent former employers. It did not bear to affect the outcome of any claim. There was no question of the statute appropriating assets in any form.

Any statute was liable to be disadvantageous towards someone’s economic interests at some remove. The ripples spreading outwards from a legislative measure could not be thought to confer or infringe legal rights to an infinite degree.

The petitioners submitted that the 2009 Act had no rational basis, that its aims and achievements were unreasonable, irrational and arbitrary, and that the Government and the Parliament had failed to approach the legislative process in a rational manner.

Where political, social and economic considerations were in play, primary legislation would require to be tainted to a serious and exceptional degree before an application to set it aside could be upheld. The petitioners’ common law challenge to the Act was rejected.

Law Agents: Brodies LLP; Solicitor to the Scottish Executive; Thompsons

From The Times
January 15, 2010

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European Court of Human Rights

Published January 15, 2010

Gillan and Quinton v United Kingdom

(Application No 4158/05)

Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, P. Hirvelä, L. Bianku and N. Vucinic

Section Registrar L. Early

Judgment January 12, 2010

Police stop and search powers under anti-terrorism legislation in the United Kingdom were too wide and not adequately safeguarded by the law against abuse.

The European Court of Human Rights so held, unanimously, when finding a violation of article 8 of the European Convention on Human Rights, guaranteeing the right to respect for private and family life.

The case concerned the police power in the United Kingdom under sections 44 to 47 of the Terrorism Act 2000 to stop and search pedestrians without reasonable suspicion of wrongdoing.

The search took place in public and failure to submit to it amounted to an offence punishable by imprisonment or a fine or both.

Sections 44 to 47 of the 2000 Act came into force on February 19, 2001. A rolling programme of successive section 44 authorisations, each covering the whole of the Metropolitan Police area and each for the maximum permissible period of 28 days, had been made and confirmed ever since that time.

Between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278.

The applicants, Mr Kevin Gillan and Ms Pennie Quinton, were British nationals who were born in 1977 and 1971 respectively and lived in London.

On September 9, 2003 they were both stopped and searched by the police, acting under sections 44 to 47, while on their way to a demonstration close to an arms fair held in the Docklands area of East London.

Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards.

Mr Gillan was allowed to go on his way after having been detained for about 20 minutes; the record of Ms Quinton’s search showed she was stopped for five minutes but she thought it was more like 30 minutes.

The applicants applied for judicial review. The Queen’s Bench Divisional Court (Lord Justice Brooke and Mr Justice Maurice Kay) dismissed the application (The Times November 5, 2003). The Court of Appeal (Lord Woolf, Lord Chief Justice, Lord Justice Buxton and Lady Justice Arden) dismissed the claim against the Home Secretary (The Times August 12, 2004; [2005] QB 388). The House of Lords (Lord Bingham, Lord Hope, Lord Scott, Lord Walker and Lord Brown) unanimously dismissed the applicants’ appeals (The Times March 9, 2006; [2006] 2 AC 307).

The applicants complained, before the Human Rights Court, that the use of the section 44 power to stop and search each of them breached their rights under articles 5 (right to liberty), 8, 10 (freedom of expression) and 11 (freedom of assembly and association).

I Article 8

Whether there was an interference

The Court considered that the use of the coercive powers conferred by the antiterrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life.

The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.

The interference could not be compared to searches of travellers at airports. An air traveller could be seen as consenting to such a search by choosing to travel.

The search powers under section 44 were qualitatively different. The individual could be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.

Whether interference “in accordance with the law”

In the Court’s view, the wide discretion conferred on the police under the 2000 Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference.

First, at the authorisation stage there was no requirement that the stop and search power be considered “necessary”, only “expedient”. The authorisation was subject to confirmation by the Home Secretary within 48 hours and was renewable after 28 days.

The Home Secretary could not alter the geographical coverage of an authorisation and although he or she could refuse confirmation or substitute an earlier time of expiry, it appeared that in practice that had never been done.

Indeed, the temporal and geographical restrictions provided by Parliament had failed to act as any real check on the issuing of authorisations by the executive.

An additional safeguard was provided by the Independent Reviewer appointed under the 2000 Act. However, his powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he had expressed the clear view that “section 44 could be used less and I expect it to be used less”.

Of still further concern was the breadth of the discretion conferred on the individual police officer. The officer’s decision to stop and search an individual was one based exclusively on hunch or professional intuition.

Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched.

The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which covering many articles commonly carried by people in the streets.

Provided the person concerned was stopped for the purpose of searching for such articles, the police officer did not even have to have grounds for suspecting the presence of such articles.

The Court was struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer.

While the present cases did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers.

There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of article 10 and/or 11.

Although the powers of authorisation and confirmation exercised by the senior police officer and the Home Secretary respectively were subject to judicial review, the breadth of the discretion involved meant that applicants faced formidable obstacles in showing that any authorisation and confirmation was ultra vires or an abuse of power.

Similarly, as shown in the applicants’ case, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case were unlikely to succeed.In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.

The Court therefore held, unanimously, that they were not in accordance with the law, in violation of article 8.

II Articles 5, 10 and 11

Given the above finding, the Court held that it was not necessary to examine the applicants’ complaints under articles 5, 10 and 11.

III Article 41

The Court held that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants. They were awarded €33,850 for costs and expenses

From The Times
January 12, 2010

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Court of Appeal

Published January 12, 2009

Cavel USA Inc and Another v Seaton Insurance Co and Another

Before Lord Justice Mummery, Lord Justice Longmore and Lord Justice Toulson

Judgment December 16, 2009

The concept of “fraud” in an English commercial law context in a case having an international flavour, was not confined to deceit flowing from fraudulent misrepresentation; it had a much wider application and could extend to cases without the need to establish the element of dishonesty of the person against whom the fraud was alleged.

The Court of Appeal so stated in allowing in part the appeal of the defendants, Seaton Insurance Co and Stonewall Insurance Co, from preliminary rulings of Mr Justice Gross ([2009] Lloyd’s Rep IR 616) as to the meaning of a term sheet signed on behalf of both the defendants and the claimants, Cavell USA Inc and Kenneth Edward Randall, documenting the termination of their contractual arrangements in respect of run offs of the defendants’ insurance business.

The term sheet provided that the second claimant was discharged from all actions claims and demands “whether in law or in equity” save “in the case of fraud”. The term sheet was said to be governed by and construed in accordance with English law and the parties submitted to the jurisdiction of the English courts.

The judge ruled that on its proper construction the parties had agreed to submit all disputes, including claims in fraud against the second claimant, to the exclusive jurisdiction of the English courts and that the expression “claims in fraud” meant claims in deceit.

After the execution of the term sheet, the defendants instituted fraud proceedings against the claimants in the Southern District of New York. They said they were entitled to bring their fraud claim in New York and that they were not confined to bringing claims which would, as a matter of English law, be regarded as claims in deceit.

The claimants issued proceedings in the commercial court for a declaration that the claims should have been brought in England.

Mr Michael Swainstone, QC and Mr Stephen Midwinter for the defendants; Mr Stephen Hofmeyr, QC and Ms Phillipa Hopkins for the claimants.

LORD JUSTICE LONGMORE agreed with the judge’s ruling on the first issue that, under the term sheet, the parties had agreed to submit all disputes, including claims in fraud, to the exclusive jurisdiction of the English courts.

As to the second issue, when the parties agreed that all claims whether at law or equity save in the case of fraud were to be released, they did not envisage that the only claims which the defendants could thereafter bring were claims which sounded in the English tort of deceit.

The phrases “or equity” and “in the case of fraud” did not sit well with confining fraud to deceit. Nor could a decision on an English statute entitling someone charged with fraud to a jury trial in a civil action be a decision of the meaning of “fraud” in a commercial document with an international flavour.

The run offs were basically run offs of the defendants’ American business and were originally subject to New York jurisdiction and arbitration clauses. Despite the fact that the term sheet was drawn up by English lawyers after substantive agreement between two principals had been reached, his Lordship did not think the word “fraud” was ever intended to mean only deceit in the sense of being only liability that followed from a fraudulent representation.

Moreover, dishonesty was not a necessary element in the cause of action of abuse of fiduciary position. There was authority for the proposition that dishonesty was not, as in the common law crime of conspiracy to defraud considered in Scott v Commissioner of Police of the Metropolis ([1975] AC 819), the touchstone of fraud but rather that deception was: see Kensington International Ltd v Republic of the Congo (The Times November 30, 2007; [2008] 1 WLR 1144).

In the commercial context of this case the concept of “fraud” was wider than the concept of the tort of deceit where a fraudulent misrepresentation, or its equivalent, was required.

The court should therefore set aside the second part of the judge’s order, substitute a declaration that the exception “in case of fraud” in the term sheet was not confined to claims in deceit but extended to at least some cases of dishonest abuse of fiduciary position, and allow the proceedings to continue.

Lord Justice Toulson and Lord Justice Mummery agreed.

Solicitors: DLA Piper UK LLP; Berwin Leighton Paisner LLP

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