Queen’s Bench Division (Admin) Ouseley J July 2, 2008

Last Updated: 9:00PM BST 30 Jul 2008

Age discrimination – Army – Pension schemes – Pensionable earnings – Service personnel – Lawfulness of decision not to backdate entire service history of Gurkha soldiers – Art. 14 European Convention on Human Rights 1950

FACTS

The claimant ex-servicemen (G) challenged the lawfulness of a decision by the defendant secretary of state, and subsequent order, to implement a new pension scheme for the Brigade of Gurkhas. G had served in the British armed forces as part of a Gurkha regiment. Upon retirement G, and all Gurkha soldiers were entitled to an army pension, but that pension was less than that which was drawn by other, non-Gurkha, servicemen. The secretary of state justified that disparity on the basis that Gurkha soldiers would retire to Nepal where, by comparison with the United Kingdom, it was cheaper to live. After 1997, the Gurkha contingent of the British armed forces was formally based in the UK and they were given the option of applying for indefinite leave to remain in the UK upon retirement. Consequently, the secretary of state implemented a scheme whereby the Gurkha soldier’s pension would be standardised in line with the UK armed services pension: under that scheme, retiring Ghurkha soldiers were entitled to the higher pension, backdated on a year by year basis till 1997 when they were formally based in the UK. Years of accumulated service before 1997 would be determined actuarially and then transferred to the individual’s entitlement as credit. G sought to challenge the lawfulness of the secretary of state’s distinction in relation to the value of a Gurkha’s service before and after 1997. G submitted that the new scheme was irrational because it did not fulfil the stated aim of equalising the benefits of retiring Gurkhas and those retiring from the rest of the British army. G argued that the only rational solution to the problem which the secretary of state faced when standardising the pensions was to transfer all of a Gurkha’s pension entitlement on a year for year basis without reference to the actuarial value of the accrued pension before 1997. G also argued that the scheme involved indirect age related discrimination in breach of the European Convention on Human Rights 1950 art. 14.

ISSUES

(i) Whether the new scheme was irrational.

(ii) Whether the only rational solution to the problem which the secretary of state faced when standardising the pensions was to transfer all of a Gurkha’s pension entitlement on a year for year basis without reference to the actuarial value of the accrued pension before 1997.

(iii) Whether the scheme involved indirect age related discrimination in breach of the European Convention on Human Rights 1950 art. 14.

HELD (application refused)

(1) The fundamental aim of the standardised pension scheme was to reflect the changes in the Gurkha contingent’s home base and to overhaul the assumption that Gurkhas would retire to Nepal. The purpose of the scheme was clearly to bring the Gurkha pension provision into line with the rest of the British army for the future, and to make provision for the past in a way that reflected those circumstances which over time had necessitated a complete change. To put a stop date on the year for year transfer had not been irrational. 1997 could properly be seen as pivotal for enhancing pension purposes. The date had a rational and clear connection with the problem to be solved by the secretary of state and with the solution chosen. The changes in the home base of the Gurkhas, in the immigration rules in relation to the armed forces and hence the expected place of retirement had a strong connection with that date. A scheme that reflected the years before and after that change in home base was not irrational, R (Purja) v Ministry of Defence [2003] EWCA Civ 1345, [2004] 1 WLR 289 considered. The new scheme was well within the range of responses open to a reasonable decision maker. Further, the fact that the secretary of state’s decision had later been expressed in a statutory instrument reinforced the case that considerable caution was required before holding that the judgments embodied in the order, which involved the balancing of a variety of considerations, economical and political, in solving a difficult problem, were unlawful.

(2) The date chosen for the change to year for year transfer from actuarial valuation was reasonable, and any differences it created between those retiring before that date and those retiring after that date were justified. The difference did not reflect age, but the number of years service based in the Far East or in the UK. If there had been indirect discrimination on the ground of age or other status, it was justified and proportionate.

John Davies QC and Simon Forshaw (instructed by Bolt Burdon Kemp) for the claimants. Rabinder Singh QC and Sam Grodzinski (instructed by Treasury Solicitor) for the defendant.

Chancery Division Norris J July 22, 2008

Last Updated: 8:59PM BST 30 Jul 2008

Breach of trust – Insured pension schemes – Pension contributions – Pension funds – Trustees’ powers and duties – Pension schemes – Diversion of demutualisation monies from pension scheme members to principal employer – s. 61 Trustee Act 1925

FACTS

The appellant (K) appealed against a decision of the Pensions Ombudsman that his actions in relation to a pension scheme constituted a breach of trust. K was a lawyer and had been the trustee of a pension scheme provided by an employer (R) to its employees. R was obliged by the terms of the scheme’s governing rules to pay into the scheme in order that the trustees might purchase necessary investments. One such investment was an insurance policy provided for by Scottish Widows, the premiums of which had always been met by R. Scottish Widows informed the trustees of its intention to demutualise and offered to compensate the trustees for the loss of their membership rights in return for their compliance with the demutualisation process. The trustees agreed to comply with the process and Scottish Widows sent them a cheque for the agreed sum of money. Subsequently, K persuaded his fellow trustees to pass a resolution diverting the demutualisation monies to R as a return of premium. The money was returned to R who utilised it to reduce its debts and increase its liquidity. The ombudsman received a complaint relating to the diversion of those funds and, having heard argument, determined that the diversion of the money from the trustees of the scheme to R and so from the scheme members to the principal employer, constituted a breach of trust because it was not a power warranted to the trustees and, furthermore, that K, as a qualified lawyer, could not avail himself of any of the defences in the Trustee Act 1925 s. 61. K submitted that (1) the ombudsman had proceeded on the erroneous assumption that K stood to gain some indirect benefit from diverting the demutualisation funds to R; (2) R was the correct owner of the Scottish Widows insurance policy having paid all the premiums thereupon, the demutualisation funds were, consequently, the property of R and it had been entitled to have them back; (3) in any event, the ombudsman did not have the jurisdiction to deal with the issue as to which party was entitled to ownership of the demutualisation assets, that decision fell squarely within the purview of the Financial Services Ombudsman.

ISSUES

(i) Whether the ombudsman had proceeded on the erroneous assumption that K stood to gain some indirect benefit from diverting the demutualisation funds to R.

(ii) Whether R was the correct owner of the Scottish Widows insurance policy having paid all the premiums thereupon, the demutualisation funds were, consequently, the property of R and it had been entitled to have them back.

(iii) Whether, in any event, the ombudsman did not have the jurisdiction to deal with the issue as to which party was entitled to ownership of the demutualisation assets, that decision fell squarely within the purview of the Financial Services Ombudsman.

HELD (appeal dismissed)

(1) Although the ombudsman had been wrong, as a matter of fact and law, to observe in his decision that K did stand to gain some indirect benefit by a reduction in the debit of R’s bank account, that error did not vitiate his overall decision nor did it undermine the factual basis upon which the complaint had been advanced.

(2) The ombudsman had not been wrong to treat the demutualisation funds as belonging to the trustees of the pension scheme. It was the trustees who were the members of the Scottish Widows mutual society and it was their rights as members which Scottish Widows were buying out when they demutualised. By the pension scheme’s governing rules R was obliged to contribute into the scheme to fund the benefits but that requirement did not mean that R owned the investment. Accordingly, the payment of the cheque to R constituted a plain breach of trust.

(3) Whilst it was true that the ombudsman had no jurisdiction to solve a dispute arising between rival claimants as to their respective ownership of demutualisation funds, it was also true that the Financial Services Ombudsman had no jurisdiction to solve disputes arising between pension scheme members and principal employers. The instant case fell squarely within the latter category and K’s attack on the jurisdiction of the ombudsman was destined to fail. Accordingly, the ombudsman was wholly correct to uphold the complaint against K.

The appellant appeared in person. James Rickards (instructed by Pinsent Masons) for the respondent.

Queen’s Bench Division HHJ Richard Seymour QC July 15, 2008

Last Updated: 9:02PM BST 30 Jul 2008

Aggravated damages – Bare licences – Damage to goods – Damage to property – Occupation – Trespassers – Occupation of premises amounting to bare licence – Validity of claims for damages – Property damage following eviction from premises – Unreliable evidence

FACTS

The claimant club owner (J) claimed damages, including aggravated or exemplary damages, as a result of damage done to the structures of premises and damage to goods belonging to her following her eviction from the premises by the third defendant property owner (H). J had occupied parts of properties including the rear of two properties previously owned by the first defendant and subsequently transferred to H. J ran a social club from the premises and alleged that her occupation was pursuant to a weekly tenancy. The environmental health department and police evicted J on the basis that H had taken possession of the premises. H later removed the roof. J maintained that goods under the roof that belonged to her had been damaged beyond repair or destroyed. She also stated that she had spent large sums fitting out the structures of the premises before her eviction and so was entitled to compensation for the loss of value of the works or the cost of repairing the structures.

ISSUES

Whether goods under the roof that belonged to her had been damaged beyond repair or destroyed.

HELD (claim struck out)

(1) On the evidence, J had not had any sort of tenancy of any part of the premises, but was simply a trespasser or a bare licensee. Consequently, J’s claims were rejected insofar as they depended on her having a tenancy.

(2) J’s evidence on any disputed matter could not be relied on. There was no clear evidence that damage had been caused to goods allegedly belonging to J as a result of the removal of the roof.

Michael Collard (instructed by AKAL, Ilford) for the claimant. Evan Price (instructed by Johns & Saggar) for the first and third defendants. Marie-Claire Bleasdale (instructed by Bude Nathan Iwanier) for the second defendant.

Court of Appeal (Civil Division) Lord Phillips of Worth Matravers CJ, May, Hallett LJJ July 23, 2008

Last Updated: 8:57PM BST 30 Jul 2008

Damages – Life expectancy – Lump sum payments – Periodical payments -Assessment of correct life expectancy

FACTS

The appellant (D) appealed against a decision on the life expectancy of the respondent (R) and an award of a lump sum made when assessing damages for personal injury. R had been knocked down by D whilst using a pedestrian crossing. R, who suffered brain and spine injuries, was left severely disabled, was confined to a wheelchair and was entirely dependent on others. It was agreed that D was 80 per cent liable. At the hearing to assess damages, the only issues were R’s life expectancy and whether to award a lump sum or periodical payments. Three experts gave evidence of a life expectancy figure of between 15 and 18 years and one expert (H) gave a figure of three to five years. The judge ruled that life expectancy was 15 years, and held that H was unable to explain how he reached his figures and was overly pessimistic. The judge further ordered a lump sum payment rather than periodical payments. D contended that (1) the judge’s decision on life expectancy was unreasoned; (2) the judge failed to have sufficient regard to an equity release scheme to release money from R’s property and, if he had, he might have ordered periodical payments.

ISSUES

(i) Whether the judge’s decision on life expectancy was unreasoned.

(ii) Whether the judge failed to have sufficient regard to an equity release scheme to release money from R’s property.

HELD (appeal dismissed)

(1) The judge’s decision on life expectancy was a finding of fact based on, and justified by, his acceptance of the evidence of three experts. H was unable to show how he reached the figure of three to five years and the judge was entitled to disregard his evidence.

(2) The award of a lump sum was not based on any error of law. If an award of periodical payments had been made it would have been insufficient to cover R’s care costs. On the evidence, equity release would only cover the shortfall of the care costs for a period of approximately three years. In those circumstances, it was perfectly rational to opt for a lump sum, which had the prospect of keeping R in his home for approximately 10 years.

Timothy Horlock QC (instructed by Greenwoods, Knaresborough) for the appellant. Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Irwin Mitchell) for the respondent.

Queen’s Bench Division (Admin) Dyson LJ July 24, 2008

Last Updated: 8:56PM BST 30 Jul 2008

Bipolar disorder – Conditions – Fitness to practise – Procedural irregularity Proportionality – Suspension – Breach of conditions of medical registration

FACTS

The appellant medical practitioner (R) appealed against a decision of the Fitness to Practise Panel of the respondent GMC to suspend her from medical practice for two months. R had bipolar disorder, which the panel had found to seriously impair her fitness to practise. Accordingly, the panel imposed various conditions upon her medical registration, one of which was abstinence from alcohol. R admitted to having consumed alcohol and the matter came back before the panel. Having heard evidence from various medical professionals, the panel again found that R’s fitness to practise was impaired by her disorder and also that she had not complied with the abstinence condition. It then invited submissions upon the form of sanction that should be imposed. After an adjournment, the panel reconvened and concluded that R should be suspended for a period of two months. It held that any breach of conditions should be considered as serious and that, having regard to the public interest and to the integrity of the medical profession, it would be insufficient merely to extend the conditions on R’s registration. It held that it would be disproportionate to suspend R for 12 months, but that it would be sufficient to send a signal to the medical profession by imposing a suspension of two months. R submitted that (1) there had been procedural unfairness, as the panel had not indicated before the adjournment that a suspension was under consideration and it had not invited R’s counsel to make submissions on the effect a suspension would have on R’s health and career; (2) the suspension imposed was disproportionate, as the panel had not addressed the impact of the suspension on R’s health and career, and had imposed it, not on a basis related to her personal circumstances, but as a signal to the medical profession.

ISSUES

(i) Whether there had been procedural unfairness.

(ii) Whether the suspension imposed was disproportionate.

HELD (appeal dismissed)

(1) There had been no procedural unfairness in the matter. There was no authority for the proposition that the panel was under an obligation to draw to the parties’ attention the fact that it was minded to impose a specific kind of sanction. In any event, R’s counsel ought to have known that the sanction could have been in the form of a suspension. If R had not had any legal representation, the situation might have been different. Further, the possibility of a suspension was canvassed before the panel, and R’s counsel made submissions on why a suspension should not be imposed. If she had wished to elaborate, she had had the opportunity to do so. R’s counsel could have sought to adduce further evidence as to the likely impact of a suspension on R’s health and career, but was apparently contented to confine herself to the brief submissions she made on the point.

(2) The panel was entitled to impose the sanction it did. The panel would have known that her health and career might have been affected: it needed no evidence for that. Also, the panel was entitled to place weight on public interest considerations and the reputation of the profession. Those were plainly important factors to be balanced on the question of proportionality.

Mary O’Rourke (instructed by RadcliffesLeBrasseur, Cardiff) for the appellant. Ivan Hare (instructed by GMC) for the respondent.

Queen’s Bench Division (Admin) Collins J July 4, 2008

Last Updated: 8:55PM BST 30 Jul 2008

Confidentiality – Freedom of expression – Investigatory powers tribunal – Jurisdiction – Security service – Statutory interpretation – Publication of material relating to security services – Ousting jurisdiction of court – Art. 10 European Convention on Human Rights – Regulation of Investigatory Powers Act 2000 – Human Rights Act 1998 – s. 65(2)(a) Regulation of Investigatory Powers Act 2000 – s. 65(2)(b) Regulation of Investigatory Powers Act 2000 – s. 65(2) Regulation of Investigatory Powers Act 2000 – s. 7(1)(a) Human Rights Act 1998 – s. 66 Regulation of Investigatory Powers Act 2000

FACTS

The court was required to determine, as a preliminary issue, whether it had jurisdiction to hear a claim by the claimant former member of the Security Service (X) to overturn the refusal of the defendant Director of Establishments of the Service to give consent for X to publish a book he had written. The book contained a description of X’s work for the Security Service. X was bound by a duty of confidentiality and could not publish material that related to the Security Service without the consent of the director. The director refused to give consent and X sought to overturn that refusal on the grounds that it was unreasonable, vitiated by bias and contrary to the European Convention on Human Rights 1950 art. 10. The director contended that the court had no jurisdiction to hear the matter as the relevant provisions of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998 required that such matters should be dealt with by the Investigatory Powers Tribunal. The director contended that the conduct complained of fell within either s. 65(2)(a) or s. 65(2)(b) of the 2000 Act and as such the appropriate forum under s. 65(2) was the tribunal.

ISSUE

Whether the court had jurisdiction to hear the matter as the relevant provisions of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998 required that such matters should be dealt with by the Investigatory Powers Tribunal.

HELD (preliminary issue determined in favour of claimant)

The claim was clearly a claim under s. 7(1)(a) of the 1998 Act and, as such, fell within the scope of s. 65(2)(a) of the 2000 Act, Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 considered. The tribunal’s main purpose was to ensure that the relevant investigatory powers contained in the 2000 Act were used lawfully and compatibly with Convention rights. If the court’s jurisdiction was ousted in respect of any claim which related to any conduct by or on behalf of the intelligence services under s. 7(1)(a) of the 1998 Act, the result would be that some claims which had no need for secrecy and were not concerned with investigatory powers would have to be dealt with by the tribunal. An individual’s right of access to a court was a right of the highest constitutional importance and if a court’s jurisdiction was to be ousted it had to be done so using clear and explicit words. The existence of a right to go to a tribunal did not, in itself, in the absence of the clearest statutory language oust the jurisdiction of the court. Under s. 65(2)(a) of the 2000 Act no reference was made to exclude the court and there was no reason to imply it. The wording of the section made sense if it was intended to exclude the jurisdiction of any other tribunal that might have jurisdiction. Section 66 of the 2000 Act gave a power to oust the court’s jurisdiction by explicit language. Similar language could have been used in s. 65(2)(a) of the 2000 Act. Parliament clearly intended that claims raising matters in relation to surveillance, interception of communications and the use of material obtained, use of covert services and acquisition of means whereby electronic data could be decrypted should be dealt with by the tribunal. However, the circumstances of the instant case were different and whilst the tribunal undoubtedly had jurisdiction its procedures were less satisfactory and the issues wider than those for which the 2000 Act specifically required it to be established. Accordingly, the court had jurisdiction to hear the claim.

Keir Starmer QC and Guy Vassall-Adams (instructed by Bindman & Partners) for the claimant. Philip Havers QC and Jason Coppel (instructed by Treasury Solicitor) for the defendant.

Court of Appeal (Civil Division) Ward, Sedley, Stanley Burnton LJJ July 15, 2008 Absolute privilege – Complaints – Police – Slander – Protection for initial complaint to police Court of Appeal (Civil Division) Ward, Sedley, Stanley Burnton LJJ July 15, 2008 Absolute privilege – Complaints – Police – Slander – Protection for initial complaint to police

Last Updated: 6:43PM BST 23 Jul 2008

FACTS

The appellant (W) appealed against a decision ([2007] EWHC 2501) that an oral complaint and written statement made by the respondent (S) were protected by absolute privilege. After a heated family argument, S had telephoned the police and claimed that W, her father-in-law, had assaulted her and her baby. She confirmed those allegations in a written statement. The police did not consider that the complaint warranted further action, and W sued S for defamation. The judge, on a preliminary issue, made the decision challenged. W argued that neither the oral complaint nor the written statement should be treated as part of the police’s investigation but rather as steps taken to instigate that investigation, so that neither enjoyed the protection of absolute privilege.

ISSUE

Whether an oral complaint and written statement made by S were protected by absolute privilege.

HELD (appeal dismissed)

Both the oral complaint and the written statement were protected by absolute privilege. The answer to the question posed in the instant case was to be found in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. Taylor established that immunity for out-of-court statements was not confined to persons who were subsequently called as witnesses. The policy being to enable people to speak freely, without inhibition and without fear of being sued, the person in question had to know at the time he spoke whether or not the immunity would attach. As society expected that criminal activity would be reported and, when reported, investigated and, when appropriate, prosecuted, all those who participated in a criminal investigation were entitled to the benefit of absolute privilege in respect of statements which they made. That applied whether they were informants, investigators or prosecutors. The answer to the argument that immunity should not protect a malicious informer had been tellingly given by Lord Simon of Glaisdale in D v National Society for the Prevention of Cruelty to Children (NSPCC) [1978] AC 171 . He had stated that although the immunity could be abused, the balance of public interest lay in generally respecting it. The test proposed by Drake J. in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 had received endorsement from their Lordships in Taylor. Thus the question was whether S’s oral and written statements could each fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated. The police could not investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint was the first step in that process. In order to have confidence that protection would be afforded, the potential complainant had to know in advance of making an approach to the police that his complaint would be immune from a direct or flank attack. There was no logic in conferring immunity at the end of the process but not from its very beginning, and W’s distinction between instigation and investigation was flawed accordingly. Any inhibition on the freedom to complain would seriously erode the rigours of the criminal justice system and would be contrary to the public interest. Immunity had to be given from the earliest moment that the criminal justice system became involved, Taylor, D v NSPCC and Evans applied.

Kenneth Craig (instructed by John Stallard & Co, Worcester) for the appellant. Nicholas O’Brien (instructed by BP Collins, Gerrards Cross) for the respondent.

Queen’s Bench Division (Admin) Sullivan J July 11, 2008 Consent – Wind farms – Wind turbines – Electricity generated by wind farms – Invalidity of consent – s. 36 Electricity Act 1989

Last Updated: 6:42PM BST 23 Jul 2008

FACTS

The claimant local authority applied for judicial review of a decision of the defendant secretary of state granting consent for an offshore wind farm. The interested party had applied for consent for a wind farm with 30 wind turbines situated 1.5km offshore. The secretary of state gave notice of the application to various persons including the local authority. The local authority raised various objections including the proximity to the shoreline of the wind turbines and the visual impact, the effect on birds and the adverse effect of the regeneration of the local area. The secretary of state granted consent under the Electricity Act 1989 s. 36. The local authority contended that (1) the offshore turbines were not a generating station for the purpose of s. 36 of the Act as they were not capable of providing consumable power by themselves, and consent was therefore invalid; (2) the secretary of state should have exercised his discretion and ordered a public inquiry.

ISSUE

Whether the secretary of state’s consent for a wind farm was validly given.

HELD (application refused)

(1) There was no dispute that electrical power generated by wind turbines was of no use to the national grid unless transformed to usable voltage. However, the question for the purposes of s. 36 of the Act was not whether the electrical power was of use, but where the power was generated. The wind farm was clearly a generating station for the purposes of s. 36 of the Act. It was clear from the Act that Parliament envisaged that a generating station might comprise a wind farm and could be located offshore. The electricity would be generated offshore and then transmitted to shore.

(2) There was nothing in the local authority’s letter of objections that suggested that a public inquiry was necessary. The secretary of state was not required to rehearse trite generalities but had to decide whether the objections disclosed a conflict of evidence that could be resolved by a public inquiry. The objections of the local authority were general, and a public inquiry would have been of no benefit. Further, the secretary of state had not failed to have regard to any material considerations that he was required to consider when deciding whether to hold a public inquiry.

Geoffrey Stephenson and Kelvin Rutledge (instructed by in-house solicitor) for the claimant. John Litton (instructed by Treasury Solicitor) for the defendant. William Norris QC and Gordon Nardell (instructed by Bond Pearce) for the independent party.

Court of Appeal (Civil Division) Laws, Scott Baker, Wilson LJJ July 15, 2008 Care proceedings – Findings of fact – Reasons – Sexual abuse – Sufficiency of evidence – Children – Sufficiency of evidence to support findings of fact

Last Updated: 6:42PM BST 23 Jul 2008

FACTS

The appellant child (C) appealed against a decision on a fact finding hearing in care proceedings that he had abused his younger sister (K). When aged 10 years old, K had disclosed to a teacher a secrets book in which she had written, after crossing out the words “my uncle”, that C had abused her. K’s friend had also disclosed an allegation in her own secrets book against her uncle using identical words, which allegation had later been withdrawn. The next day K had been interviewed and gave details of mostly vaginal but also anal abuse by C over a number of years, the most recent of which had taken place two days earlier. Medical evidence was inconclusive, and forensic evidence was that C’s semen had been found on K’s pyjama bottoms but not on her knickers. C completely denied any abuse. The judge concluded that the abuse had occurred on a few occasions in the vicinity of K’s anus but more repeatedly in the vicinity of the vagina and that C may have on occasions achieved partial penetration. C argued that (1) the evidence did not support the judge’s findings; (2) he had not been given the opportunity to deal with suggestions of partial penetration; (3) there was evidence that was not dealt with by the judge at all or was referred to cursorily that favoured C’s case and suggested that K might not have been telling the truth.

ISSUES

(i) Whether the evidence did not support the judge’s findings.

(ii) Whether C had not been given the opportunity to deal with suggestions of partial penetration.

(iii) Whether there was evidence that was not dealt with by the judge at all or was referred to cursorily that favoured C’s case and suggested that K might not have been telling the truth.

HELD (appeal dismissed)

(1) Taking the evidence as a whole, including K’s age, the medical evidence and the fact that semen had been found on K’s pyjama bottoms, the judge had been entitled to make the findings he had.

(2) C had completely denied any sexual misconduct and so he had suffered no injustice by the judge’s finding of partial penetration. The judge had not made any finding that abuse had occurred on any occasion that was not the subject of allegations.

(3) It was very difficult to know what weight the judge had given to matters that suggested that K had not been telling the truth. In particular, the judge had rightly said that the similarities in the entries in the secrets books coupled with the withdrawal of the friend’s allegations gave rise to concern, but he had not explained convincingly how his concerns had been allayed. However, it was clear that the judge’s concerns had been overridden by his belief that K’s account was essentially true, corroborated as it was by semen on her pyjamas.

Anthony Ward (instructed by Hartnell Chanot, Exeter) for the appellant. Tina Cook (instructed by in-house solicitor) for the first respondent. JI Farquharson (instructed by Ford Simey, Exeter) for the second respondent. Chris Godfrey (instructed by Foot Anstey, Exeter) for the third respondent.

Queen’s Bench Division Eady J July 3, 2008 Confidentiality – Confidentiality agreements – Safeguarding information – Special forces – Unauthorised public disclosures – Contractual obligation to seek express prior authority in writing

Last Updated: 6:41PM BST 23 Jul 2008

FACTS

The claimant Ministry of Defence brought proceedings against the defendant former soldier (G) alleging that he was in breach of a confidentiality agreement and an equitable duty of confidence. G had served in the United Kingdom Special Forces (UKSF). As part of his application to join the UKSF, G was required to sign a confidentiality agreement. The agreement provided, amongst other things, that G would not disclose any information, document or other article relating to the work of the UKSF without express prior authority in writing from the ministry. The ministry’s complaint was that G, since his discharge from the UKSF, had made a number of unauthorised public disclosures and statements in respect of matters which he experienced or which came to his knowledge through his service with the UKSF. At no point did G approach the ministry in order to seek express prior authority for his disclosures. The issue was whether G was permitted to exercise his own judgment in deciding what information was covered by his duty of confidence, whether contractual or otherwise.

ISSUE

Whether G was permitted to exercise his own judgment in deciding what information was covered by his duty of confidence.

HELD (judgment for claimant)

It was important to remember that the relief sought by the ministry was not a blanket ban on G’s right to publish relevant information, but only to require him to go through the clearance procedure prescribed by the contract. The court was being asked to do no more than enforce the terms of a contract which had been held by previous authority to be enforceable, R v Attorney General of England and Wales [2003] UKPC 22, [2003] EMLR 24 applied. What was critical in the instant case was that under the contractual arrangements, the ministry had a right, at least in the first instance, to make judgments as to any proposed disclosure. In the background was a safeguard, where appropriate, of an application for judicial review. Some of what G had revealed was anodyne and most was general in nature. Also, similar allegations of wrongdoing had been canvassed publicly in the past. However, it did not matter what the court thought. What was important was that the right to make that judgment was reserved under the contractual framework to be made by those more qualified, or at least more experienced, in the field. G must comply with his contractual obligation in the event that he wished to make further disclosures and make an application for express prior authority in writing. It might not succeed. Nevertheless, G’s plain obligation was to make an application for prior authority first and then, if necessary, consider the possibility of an application by way of judicial review. The court was bound to continue the terms of an existing injunction against G until trial or further order.

Robin Tam QC, Martin Chamberlain and Oliver Sanders (instructed by Treasury Solicitor) for the claimant. Keir Starmer QC and Alex Bailin (instructed by Leigh Day & Co) for the defendant.

Court of Appeal (Civil Division) Sir Anthony Clarke MR July 7, 2008 Civil appeals – Law Society – Members – Private hearings – Solicitors – Spent convictions – Students – Appeal against revocation of Law Society membership – existence of spent convictions – Appeal to be heard in public – Rehabilitation of Offenders Act 1974 – r. 39 2(3)(c) Civil Procedure Rules 1998 – Art. 8 European Convention on Human Rights 1950 – s. 7 Data Protection Act 1998 – Art. 6 European Convention on Human Rights 1950 – Rehabilitation of Offenders act 1974 (Exceptions) Order 1975 – s. 4(2) Rehabilitation of Offenders Act 1974 – Sch. 3 para. 1 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – S. 4(3)(b) Rehabilitation of Offenders Act 1974

Last Updated: 6:40PM BST 23 Jul 2008

FACTS

The court was required to determine whether or not an appeal brought by the appellant (L) under the Master of the Rolls (Appeals and Applications) Regulations 2001 against a decision of the respondent Law Society to revoke his membership should be heard in private. L had been admitted as a student member of the Law Society following a consideration of his background and his previous convictions by the Solicitors’ Regulation Agency. Following a number of incidents that involved L but which did not relate to any criminality, the Law Society revisited its decision and revoked his membership. The Law Society did not consent to the appeal being heard in private and it was therefore for L to demonstrate that there were exceptional circumstances within the meaning of r. 10 of the 2001 Regulations justifying a hearing in private. L submitted that the appeal should be heard in private because (1) it involved consideration of a number of convictions that were classified as spent under the Rehabilitation of Offenders Act 1974; (2) his spent convictions were analogous to confidential information under the CPR r. 39. 2(3)(c); (3) the Law Society had infringed his rights under the European Convention on Human Rights 1950 art. 8 when it required him to use his own subject access rights under the Data Protection Act 1998 s. 7 to obtain copies of his confidential police records; (4) a public hearing would result in a loss of his livelihood and would infringe his rights under art. 6 of the Convention.

ISSUE

Whether or not the appeal brought by L under the Master of the Rolls (Appeals and Applications) Regulations 2001 against a decision of the Law Society to revoke his membership should be heard in private.

HELD (application refused)

(1) By virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the protection provided by s. 4(2) of the 1974 Act did not apply to questions posed to individuals in order to assess their suitability for admission to the solicitors’ profession. L could therefore be required to disclose to the Law Society the nature and existence of any spent convictions and to answer questions relating to those convictions during the admissions process. Moreover, by virtue of Sch. 3 art. 5 para. 1 of the 1975 Order, the exemption from protection extended to disciplinary proceedings and to the instant appeal. That was not to say that L had entirely lost the protection of the 1974 Act; he would not be prejudiced should he wish in future to bring defamation proceedings and his employment status was protected. In those circumstances the existence of spent convictions did not amount to exceptional circumstances for the purposes of r. 10 of the 2001 Regulations.

(2) L’s spent convictions were not confidential information. Firstly, the 1974 Act did not render spent convictions confidential, it simply put in place a regime that protected an individual from being prejudiced by the existence of such convictions. Secondly, a policy statement of the SRA guaranteeing that it would, in the context of carrying out character and suitability assessments, treat information supplied to it as confidential did not apply to the instant proceedings. The policy applied to the admissions process. In hearing appeals against the cancellation of a student’s enrolment, the Master of the Rolls was sitting as an independent tribunal and was not sitting as an SRA Adjudicator. The proceedings arose outwith and independently of the SRA’s admissions process and the guidelines applicable to it.

(3) The fact that L had been required to use his own subject access rights to obtain copies of his confidential police records was a matter for the SRA’s internal procedures and did not help determine whether or not the appeal should be held in private.

(4) Given the protection afforded by s. 4(3)(b) of the 1974 Act, a public hearing would not infringe L’s rights under art. 6 of the Convention. Though it might have an adverse effect on the work he did, that would not amount to a loss of livelihood. Nor was it necessary in the public interest to hear the appeal in private. The general rule that, in the absence of exceptional circumstances, appeals should be heard in public was justified in the case of all convictions for a number of reasons. Firstly, they were convictions relevant to an application to join a regulated profession, the members of which had to be capable of being trusted implicitly. Part of ensuring that public confidence was maintained was that proceedings such as the instant ones were held in public. Second, entry to a regulated profession carried with it the potential that spent convictions would enter the public domain. Finally, L could not reasonably suggest that he would be deterred from pursing his appeal were it to be heard in public, Scott (aka Morgan) v Scott [1913] AC 417 considered. His distress was not sufficient to require the appeal to be heard in private.

The appellant in person. Iain Millar (instructed by Bevan Brittan) for the respondent.

Divisional Court Pill LJ, King J July 15, 2008 Broadcasting – Contempt of court – Fines – Previous convictions – Sub judice – Media publication of accused’s antecedents before trial – Determination of appropriate fine s. 2(2) Contempt of Court Act 1981

Last Updated: 6:32PM BST 23 Jul 2008

FACTS

The Attorney General applied for an order for committal, or other appropriate order, against the respondent broadcaster (B) for contempt of court. B had broadcast a news report of 23 seconds duration on a regional television programme which referred to the trial of five men that was due to take place later that day. The report, prepared by a journalist, referred to the fact that one of the accused had been convicted of murder and was serving a sentence of imprisonment for that offence. The news report was repeated on two late morning news bulletins. The broadcast was drawn to the attention of the trial judge who postponed the trial. The respondent offered a full and unreserved apology at the earliest opportunity. All five defendants were subsequently convicted. B voluntarily agreed to pay the third party costs that were incurred through the postponement of the trial before those costs were known to it. Those costs were subsequently agreed in the sum of £37,014. The Attorney General contended that the broadcast was a clear breach of the strict liability rule under the Contempt of Court Act 1981 s. 2(2). B accepted that a basic and serious aberrational error occurred through the publication of the news report but argued in mitigation that regard should be had to the fact that the error of revealing an accused’s antecedents before trial was so “blindingly obvious” that it had not anticipated that a trained journalist preparing a news report for broadcast would so err. B further submitted that it had subsequently put in place editorial safeguards to prevent an occurrence of such an error and that its broadcast had not been designed to create sensationalism or to gain an “exclusive”.

ISSUE

Whether the broadcast was a clear breach of the strict liability rule under the Contempt of Court Act 1981 s. 2(2).

HELD (application granted)

The publication in question was a serious and basic error that created a real risk that the broadcast might be heard by members of the jury due to hear the trial. A charge of murder was serious, as was a conviction for murder and the “simplicity” of the error could not detract from the seriousness of the publication. B should have been known that where a person was convicted of murder and was due to be tried on another charge of murder, his previous conviction should not be disclosed. The contempt had resulted in the disturbance of the court, delays and distress to third parties. However it also had to be borne in mind that the payment of third-party costs was a type of punishment in itself and that such a payment was not reflected in the penalties imposed in previous cases for a contempt of court of the type that had occurred in the instant case. Accordingly in all the circumstances it was appropriate to require B to pay a fine of £25,000.

Philip Havers QC (instructed by Treasury Solicitor) for the Attorney General.

Andrew Caldecott QC (instructed by Goodman Derrick) for the respondent.

House of Lords Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance June 16, 2008

Last Updated: 5:49PM BST 25 Jun 2008

Basis of plea – Child sex offences – Criminal charges – Justification – Presumption of innocence – Proportionality – Rape – Right to fair trial – Right to respect for private and family life – Strict liability – Young offenders – Conduct falling within ambit of s. 5 and s. 13 Sexual Offences Act 2003 – Lawfulness of prosecutor’s decision to prosecute under s. 5 – Art. 6(1) European Convention on Human Rights 1950 – Art. 6(2) European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 13 Sexual Offences Act 2003 – s. 5 Sexual Offences Act 2003

FACTS

The appellant (G) appealed against his conviction for rape of a child under the age of 13 contrary to the Sexual Offences Act 2003 s. 5. G was 15 at the time of the offence, and the complainant was 12. She had originally complained that he had intercourse with her against her will. G was charged with the s. 5 offence. He offered to plead guilty on the basis that the complainant willingly agreed to have intercourse with him and that he believed she was 15 because she had told him so. The prosecutor was at first unwilling to accept that basis of plea, but then the complainant changed her account of the incident and decided she was content with G’s basis of plea. The prosecutor was invited to drop the case altogether but declined to do so. G appealed against his conviction and sentence, but only succeeded with respect to the sentence. The Court of Appeal certified two questions as being of general public importance, namely (i) whether a criminal offence of strict liability could violate the European Convention on Human Rights 1950 art. 6(1) or art. 6(2); (ii) whether it was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13 of the Act. G submitted that (1) the offence created by s. 5, interpreted as one of strict liability, was incompatible with art. 6(2), which provided that everyone charged with a criminal offence was to be presumed innocent until proved guilty according to the law. The European Court of Human Rights in Salabiaku v France (A/141-A) [1991] 13 EHRR 379 had stated that art. 6(2) required states to confine “within reasonable limits” presumptions of fact or law in criminal proceedings. The creation of strict criminal liability would always engage a consideration of compatibility with the presumption of innocence; (2) his right to respect for his private life had been violated because the prosecutor did not drop the charge under s. 5 and substitute one under s. 13. His conviction and sentencing for the s. 5 offence involved both a stigma and practical consequences which were disproportionate.

ISSUES

(1) Whether the offence created by s.5, interpreted as one of strict liability, was incompatible with art. 6(2).

(2) Whether G’s right to respect for his private life had been violated.

HELD (appeal dismissed) (Lords Hope and Carswell dissenting on the art. 8 issue)

(1) G’s argument read far too much into the wording of art. 6(2) and the court’s reasoning in Salabiaku. Article 6 was concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law, Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163 and R v G (2002) EWCA Crim 1992, [2003] 3 All ER 206 applied. When art. 6(2) referred to “innocent” and “guilty” it was dealing with the burden of proof regarding the elements of the offence and any defence to it; it was not dealing with what those elements were or what defences ought to be available. Salabiaku was not inconsistent with that analysis, Salabiaku considered. Section 5 was not incompatible with art. 6(2).

(2) It was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13. “Rape of a child under 13” still accurately described what G had done. Parliament had decided to use that description because children under 13 could not validly consent to sexual intercourse. G’s real complaint was that he had been convicted of an offence bearing the label “rape”. If that engaged G’s art. 8 rights at all, it was entirely justified. The state would have been open to criticism if it had not provided the complainant with adequate protection. It sought to do that by a clear rule that children under 13 were incapable of consenting to sexual activity, and treating penile penetration as a most serious form of such activity. That did not amount to a lack of respect for the private life of the penetrating male. Even if it did, it could not be an unjustified interference with that right to label the offence “rape”.

(3) (Per Lords Hope and Carswell) Where choices were left to the prosecutor they had to be exercised compatibly with the Convention rights. It was unlawful for the prosecutor to continue to prosecute G under s. 5 in view of his acceptance of the basis of G’s plea, namely that the complainant had consented to intercourse. As the offence fell properly within the ambit of s. 13, G’s conviction of rape under s. 5 was disproportionate and incompatible with his rights under art. 8.

Tim Owen QC and Rebecca Trowler (instructed by Alexander & Partners) for the appellant. David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the respondent. Jeremy Johnson (instructed by Treasury Solicitor) for the intervener.

Last Updated: 3:12PM BST 09/07/2008
Divisional Court

Sir Igor Judge P, Sullivan J

June 20, 2008

Assurances – Delay – Extradition requests – Inhuman or degrading treatment or punishment – Right to respect for private and family life – Torture – Evidence allegedly tainted by torture – Risk of inhuman or degrading treatment – Interference with right to respect for family life – Art. 3 European Convention on Human Rights 1950 – CPR PD 54 (Judicial Review) 2000 – Art. 8 European Convention on Human Rights 1950 – s. 103 Extradition Act 2003

FACTS

The appellant (M) appealed against an order of a district judge sending his case to the second respondent secretary of state for her decision whether he should be extradited, and against the secretary of state’s decision ordering his extradition to the first respondent requesting state, the United States. M, who had physical disabilities and was in a state of ill-health, had been indicted in the United States on a number of terrorism-related charges, including conspiracy charges, relating to taking of hostages in Yemen that resulted in deaths and serious injuries of several hostages, making arrangements for an alleged terrorist training camp in the United States, and violent jihad in Afghanistan.

The US requested extradition but those proceedings were adjourned when M was charged with offences contrary to domestic law in the United Kingdom. The proceedings were resumed approximately three years later. M submitted that (1) contrary to the European Convention on Human Rights 1950 art. 3, the request for extradition was based on evidence obtained directly or indirectly by torture or ill-treatment of certain individuals and, therefore, the request for extradition was tainted; (2) there was a real risk that, if extradited, he would be subjected to torture or ill-treatment, and it would be inappropriate to rely on diplomatic assurances tendered by the US; (3) there would be a disproportionate interference with his rights under art. 8 of the Convention as he would be deprived of the family visit he was enjoying in the UK; (4) due to the passage of time since the alleged offences had been committed, it would be unjust and oppressive to extradite him.

ISSUES

(i) Whether the request for extradition was tainted.

(ii) Whether there was a real risk that, if extradited, M would be subjected to torture or ill-treatment, and it would be inappropriate to rely on diplomatic assurances tendered by the US.

(iii) Whether there would be a disproportionate interference with M’s rights under art. 8 of the Convention as he would be deprived of the family visit he was enjoying in the UK.

(iv) Whether due to the passage of time since the alleged offences had been committed, it would be unjust and oppressive to extradite M.

HELD (appeals dismissed)

(1) When the possible use of direct “torture” was addressed, it emerged that none of the victims of alleged torture provided evidence against M. Evidence obtained indirectly by torture was, in principle, admissible under domestic law and in that respect there was no fundamental difference between the approach to such evidence either in the UK or the US. The allegation that the evidence against M was “tainted by torture” was made in the most general terms, was unsupported by evidence and failed to distinguish between evidence that was the indirect result of torture and that which was indirectly obtained as a result of ill-treatment falling short of torture. The underlying contention that the approach in the US to evidence tainted by torture was “deficient”, because evidence that a witness had been tortured would go to weight rather than admissibility (a) did not address the fact that the case against M did not rely on evidence from any witness who was said to have been tortured, or from the torture of M himself; (b) drew a legal distinction between admissibility and weight which was, on the facts of the instant case, a distinction without any practical difference; and (c) was in conflict with authorities in the US and with the understanding of the House of Lords and the European Court of Human Rights about the approach of courts in the US to such evidence, A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221 and Jalloh v Germany (54810/00) [2007] 44 EHRR 32 considered. None of the material relied on by the US carried anything of the smell of the torture chamber sufficient to require its exclusion in a trial in the UK.

(2) In view of the history of unswerving compliance by the US with diplomatic assurances, the diplomatic assurance given in respect of M would be honoured. If convicted M would be sentenced to very lengthy terms of imprisonment and, in all likelihood, a whole life tariff would be imposed. Of itself that would not constitute a breach of art. 3. Further M’s detention for a short period in a US “supermax” prison would not be incompatible art. 3. His ill-health and physical disabilities would be considered.

(3) The more serious the offence, the longer the likely sentence and the greater the interference with the extraditee’s art. 8 rights, but the common approach to terrorism throughout the civilised world would be derailed if an extradition process that might culminate in amply-justified sentences of huge length, to be served in prisons abroad, could, save in the most exceptional circumstances, constitute a breach of art. 8.

(4) The delay in the proceedings was consequent upon the legitimate purpose of bringing M’s additional criminal activity in the UK to justice. It would not be “unjust” or “oppressive” for M to be extradited to the US to face charges.

(5) The order made by the district judge had been properly made, and the subsequent decision of the secretary of state was unassailable.

(6) (Obiter) Until further guidance was issued, CPR PD 54 para. 15 should be adopted for the purposes of appeals under the Extradition Act 2003 s. 103.

Alun Jones QC, Ben Brandon (instructed by Arani & Co, Southall) for the appellant. Hugo Keith and Clair Dobbin (instructed by Crown Prosecution Service) for the first respondent. James Eadie QC (instructed by Treasury Solicitor) for the second respondent.

Last Updated: 3:13PM BST 09/07/2008
Divisional Court

Moses LJ, Blake J

July 3, 2008

Forestry – Gardens – Licences – Trees – Tree felling licences – Garden exemptions – s. 9(2)(b) Forestry Act 1967

FACTS

The appellant (R) appealed by way of case stated against a decision of a Crown Court to dismiss R’s appeal against his conviction for felling trees on an area of land without a licence, contrary to the Forestry Act 1967 s. 17(1). A couple had owned the land in question and an adjoining area of land upon which there was a lodge. They used the former land as a garden and later transferred it to their daughter (D). The couple then sold the adjoining land to an individual (B). D moved to New Zealand, but retained her land and allowed B to have use of it. B, however, had neither the time nor the resources to maintain the garden and it fell into disuse. Thirty years later, R purchased the adjoining land from B, and D’s land, which had become rather heavily wooded and overgrown, from D. R then contacted the Forestry Commission to find out what permission or licence he might require to clear D’s former land of trees so that he could use it as a garden.

The commission’s response was to send R a publication that gave details of the law surrounding tree felling. Included in those details was s. 9(2)(b) of the Act, which provided that a licence was not required in respect of trees standing in, among other things, a garden. Having viewed the guidance, R proceeded to fell the trees. However, the commission then issued a summons alleging an offence under s. 17(1) of the Act. R was convicted, and his appeal was dismissed. The court accepted that R’s intention to reinstate the land as a garden was genuine, but held that over the 30 years that land had ceased to be a garden as a result of its falling into disuse, and it was not, therefore, a garden for the purposes of s. 9(2)(b) of the Act.

ISSUE

Whether the court was wrong to find that R could not avail himself of the exemption under s. 9(2)(b) of the Act.

HELD (appeal allowed)

The anxiety of the commission in cases such as the instant one was that someone could fell trees and avoid the need for a licence by merely asserting that they did so because they intended to create and make use of a garden. The question depended on the facts and circumstances of the case. A mere assertion of intention might well be insufficient to satisfy the burden on a defendant to show that he did not require a licence. In the instant case, however, the facts and circumstances all went to establish what R had asserted, namely that cutting down the trees was part of the fulfilment of his intention to restore that which had previously been a garden.

As to whether the court was entitled to conclude that the land had fallen into such disuse as to cease to be a garden, it was unnecessary to resolve that question. However, it was doubtful that the mere fact that B had had no time or resources to maintain the garden, and that D had gone abroad, meant that the land in question ceased to be a garden, McInerney v Portland Port Ltd [2001] 1 PLR 104 DC distinguished. R’s intentions, coupled with the land’s history, compelled the conclusion that the court was wrong to describe the land as not comprising a garden by reason of falling into disrepair. The error of the court was in failing to give sufficient weight to the genuineness of R’s intentions and the history of the land. Thus, the court was wrong to find that R could not avail himself of the exemption under s. 9(2)(b) of the Act.

Dominic Grieve QC and David Lamming (instructed by Gotelee & Goldsmith, Ipswich) for the appellant. Tom Payne and Priya Khanna (instructed by DEFRA) for the respondent.

Last Updated: 3:14PM BST 09/07/2008
Queen’s Bench Division (Manchester)

Swift J

June 26, 2008

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Breach of duty of care – Credibility – Defects – Highway maintenance – Tripping and slipping – Defect in highway – Treated by judge as pavement not carriageway – Dangerousness of defect – s. 58 Highways Act 1980

FACTS

The appellant local authority appealed against a decision that it was liable to the respondent (C) in damages for negligence after she tripped on a highway maintained by the local authority. C claimed that when she was crossing the street where she lived she caught her foot in a depression in the road, tripped and fell, sustaining various injuries. Her evidence was supported by one purported eye witness (M), who also lived in that street. C and M had a history of involvement in similar highway tripping claims. M had made three such claims, and claimed to have been witness to a similar accident suffered by another neighbour. C’s brother and son had both made claims, her brother’s being supported by evidence from her and M. At trial the local authority contended that C’s and M’s history of involvement in similar claims cast doubt on their reliabililty and seriously undermined C’s case.

The judge found that the accident had occurred as alleged by C, the relevant part of the highway was dangerous and the local authority had not taken all reasonable care to ensure that it was not dangerous so it had no defence under the Highways Act 1980 s. 58. The local authority submitted that (1) the judge had failed to address the central issue of whether M’s history of suffering and witnessing tripping accidents was credible, or to mention the evidence that M had been at work at the time of the accident, or to consider the effect of M’s lack of credibility on C’s credibility; (2) the judge’s finding of dangerousness was wrong as the defect was long-standing, there was no evidence that it had caused any other accident, it had not been reported as dangerous by anybody and the inspectors who checked it after C’s accident took no steps to have it repaired; moreover, he should not have applied the standards that were applicable to the pavement rather than the carriageway; (3) the judge had been wrong to find that it had not taken all reasonable care to ensure the highway was not dangerous.

ISSUE

Whether the local authority was liable to C in damages for negligence after C tripped on a highway maintained by the local authority.

HELD (appeal allowed)

(1) The judge had seen the witnesses and was able to assess them with the history of claims in mind. He referred to the need to scrutinise the evidence with particular care in light of that history, and made clear findings about the witnesses’ credibility. He found C to be an honest and generally reliable witness; he was less impressed with M, but made an explicit finding about the extent to which he could accept his evidence. All three people involved in the two tripping accidents witnessed by M lived on the same street, where the community was particularly litigious; and the accidents, two years apart, happened there. It was not completely inconceivable that a person living on a residential street who was frequently out and about should be a witness to two accidents occurring there. The coincidence was not of the same order as that of two people, apparently unknown to each other, being involved in three separate road traffic accidents within a year, Francis v Wells [2007] EWCA Civ 1350, [2008] RTR 13 distinguished. M’s involvement as a witness and a victim in five separate tripping accidents was bound to raise some suspicions as to his credibility, but the history did not point inevitably to the finding that he was lying when he said that he had witnessed C’s accident.

(2) The judge had been entitled to find that C’s accident had occurred at a point that pedestrians were likely to choose as a crossing point, but he had unduly emphasised the extent of pedestrian use on what was an ordinary residential street. He had erred in finding that the location of the accident was more akin to pavement than carriageway, and that led him wrongly to apply the standards appropriate to a pavement. Applying the less stringent standards applicable to the carriageway, the evidence pointed to the defect not being dangerous. The risk it presented was of a low order and the cost of remedying all such defects in the carriageway would be wholly disproportionate, Mills v Barnsley MBC [1992] PIQR P291 applied.

(3) If the judge had been right to find that the location of the defect was more akin to pavement, then he would have been entitled to find, as he did, that the local authority’s defence under s. 58 failed because its inspectors had not applied the guidelines applicable to pavements.

Peter Cowan (instructed by Weightmans LLP) for the appellant. Peter Kidd (instructed by Haworth & Gallagher, Birkenhead) for the respondent.

Last Updated: 3:16PM BST 09/07/2008
Court of Appeal (Civil Division)

Buxton, Keene, Thomas LJJ

July 3, 2008

Apportionment – Reasons – Road traffic accidents – Apportionment of liability between parties

FACTS

The appellant (X) appealed against an order apportioning liability between him and the respondent (Y). X had been driving a car towing a caravan when his tyre blew out. He came to a halt, stopping just before a left-hand bend, and put his hazard lights on. Y, who was driving a car, managed to get around the obstruction but braked hard to avoid a collision with an oncoming vehicle. A motor cyclist (M), who was travelling very close behind Y, did not see X’s vehicle and when Y braked, he lost control and fell into the path of the oncoming vehicle. M suffered serious injuries and his pillion passenger was killed. M issued proceedings against X and Y and at a trial for liability it was held that X had been negligent in failing to put out a warning triangle and Y had also been negligent by driving too fast. The judge found that M had been 60 per cent contributory negligent and apportioned liability equally against X and Y. X submitted that the judge had erred in his approach to apportionment. He contended that Y had been grossly negligent in driving too fast whereas he had only failed to use a warning triangle.

ISSUE

Whether the judge had erred in his approach to apportionment.

HELD (appeal dismissed)

Whilst the judge had failed to give any reasons for his decision on apportionment there was no reason to interfere with his decision. If the judge had analysed the two acts of negligence to see whether there was a distinction between them he would have been entitled to conclude there was not. It was clear from his findings on negligence that he took the view that had the warning triangle been placed on the road it might have affected Y and M. If the judge had compared the causative potency of the actions of X and Y he could have concluded that they were equal.

William Audland (instructed by Greenwoods, Knaresborough) for the appellant. John Isherwood (instructed by Beachcroft LLP) for the respondent.

Last Updated: 3:21PM BST 09/07/2008
House of Lords

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury

July 2, 2008

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Criminal liability – Direct participation – Intention – Joint enterprise – Jury directions – Knives – Mens rea – Murder – Intention of associates to joint enterprise – Fundamental difference test

FACTS

The appellants (R) appealed against a decision ([2007] EWCA Crim 342, [2007] 1 WLR 2191) upholding their convictions for the murder of a young man (V). R were part of a group of men which chased and attacked V and his friends with weapons including baseball bats, metal bars and knives. V died from two deep knife wounds in his back. There was no evidence that R inflicted the fatal injuries; the participant who did probably escaped arrest. R were convicted for their part in the joint enterprise. The question posed for the opinion of the House of Lords was whether, if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was relevant: (i) to whether the killing was within the scope of a common purpose to which the secondary party was an accessory; (ii) to whether the principal’s act was fundamentally different from the act or acts which the secondary party foresaw as part of the joint enterprise.

ISSUE

Whether a defendant involved in a joint enterprise which resulted in murder only had to foresee what his associate might do, not what he specifically intended to do, to be guilty of murder as an accessory.

HELD (appeals dismissed)

The principle of joint enterprise was illustrated by the following example: if B realised (without agreeing to such conduct being used) that C might kill or intentionally inflict serious injury, but nevertheless continued to participate with C in the venture, that would amount to a sufficient mental element for B to be guilty of the murder if C, with the requisite intent, killed in the course of the venture, unless: (a) C suddenly produced and used a weapon of which B knew nothing and which was more lethal then any weapon which B contemplated that C or any other participant might be carrying and (b) for that reason C’s act was to be regarded as fundamentally different from anything foreseen by B, R v Powell (Anthony Glassford) [1999] 1 AC 1 HL and R v Hyde (David Charles) [1991] 1 QB 134 CA (Crim Div) applied, Chan Wing Siu v R [1985] AC 168 PC (HK) considered. However, the decision in R. v Gamble and Others [1989] NI 268 was not easily reconcilable with that formulation. The question in the instant case was whether an intention by the primary party to kill must have been known or foreseen by R if R were to be held criminally liable for V’s murder. If that proposition were accepted it would introduce a highly undesirable level of complexity into such cases. It was often difficult for jurors to make a reliable assessment of what a defendant foresaw as likely acts of his associates during fast-moving events. It would be even harder for jurors to judge what a defendant foresaw as the intention with which his associates might perform such acts. It was safer to focus on a defendant’s foresight of what an associate might do, an issue to which knowledge of the associate’s possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant. In addition, requiring foresight of an associate’s intention to kill would undermine the principle on which the law of murder was based since in the prosecution of a principal offender for murder, it was not necessary for the prosecution to prove whether the defendant intended on the one hand to kill or on the other to cause really serious injury. R knew that they were taking part in a joint attack with the purpose of causing serious injury, in which one or more of the participants was armed with a knife. Obviously, those participants would not have had a knife unless they were prepared to use it in the attack. In the absence of any evidence to the contrary, the jury was entitled to conclude that R must have realised that when they joined in the attack. Killing due to the use of a knife could not be regarded as a complete departure from what R contemplated as being involved in the common design. The answer to both questions posed by the Court of Appeal was therefore no. The Court of Appeal had suggested a series of questions which a trial judge might invite a jury to consider in similar cases. However, there could be no prescriptive formula for directing juries. Having made clear the governing principle, it was for trial judges to choose the terms most apt to enable juries to reach a just decision in the particular case.

Michael Harrison QC and Yunus Valli (instructed by Sharpe Pritchard) for the appellants. Robert Smith QC and Paul Greaney (instructed by Crown Prosecution Service) for the respondents.

Last Updated: 3:17PM BST 09/07/2008
Queen’s Bench Division (Admin)

Burnett J

June 26, 2008

Breach – Decision-making – Grants – Higher Education Funding Councils – Terms and conditions – Recovery of research support grants – Breach of terms and conditions – Fairness of decision-making process – s. 65(4) Further and Higher Education Act 1992

FACTS

The claimant university applied for judicial review of a decision of the defendant Higher Education Funding Council for England to recover from the university a total of £852,000 of research support grant funds. The council had made the recovery on the basis that the university was in breach of the terms or conditions applicable to obtaining the grant. The government had made funds available to augment those provided by charitable institutions for medical research on the basis set out in a framework document, which included a requirement that the charitable grant was the subject of open competition.

ISSUES

(i) Whether it was for the court to determine as a primary fact-finder whether the university was in breach of the material terms and conditions of the grant or whether that was a question for the council subject to traditional public law grounds of review.

(ii) What the meaning of the term “open competition” in the relevant policy and documentation was.

(iii) Whether the decision-making process was fair.

(iv) Whether the decision to recover the money was taken by somebody properly authorised to do so.

(v) Whether the decision-maker appreciated that there was a discretion whether to recover all or part of the sum in the event that a breach was established.

(vi) Whether the court should, in its discretion, grant any relief even if an error of law was established.

HELD (judgment accordingly)

(1) The question of a failure to comply with a term or condition on which money was provided by the council did not call for the application of the precedent fact approach. The reality was that even where Parliament had not used subjective language, it was the exception rather than the rule that factual matters would fall within the precedent fact category leading the court to take on the primary fact finding role. It was most unlikely that Parliament intended that disputes about compliance with terms and conditions should be determined by a court as a primary fact-finder. One purpose of the Further and Higher Education Act 1992 s. 65(4) was to enable the council to recover the money without the need for a private law action.

(2) It was evident that something could not be described as “open competition” if individuals or bodies who appeared to have the necessary skills to carry out the work were not able to compete for the funding. On the evidence the Council was entitled to conclude that the basis upon which the funds were made available to the university did not satisfy the criterion for “open competition”.

(3) The exchanges between the council and the university did not evidence a closed mind or otherwise support the contention that the procedure followed was unfair. The council did consider the points raised by the university.

(4) The scheme of delegation authorised the chief executive to make a decision concerning payment. However, the evidence showed that the chief executive did not make the decision as he should have done within the scheme of delegation.

(5) Because the chief executive did not make the decision in question, the issue of whether he appreciated that he had a discretion whether to recover any or part of the overpayment did not, strictly speaking, arise.

(6) The instant case was on in which the legislation required a scheme of delegation if the council itself was to be relieved of the decision making. The council put in place a scheme of delegation which was not followed. Where a discretionary decision had been taken by someone not authorised to do so, such as in the instant case, the decision should be quashed and remitted to the correct decision maker, in the instant case the chief executive, to consider the matter.

Charles Bear QC and James McClelland (instructed by Eversheds) for the claimant. Michael Beloff QC and James Maurici (Beachcroft LLP) for the defendant.

Last Updated: 5:36PM BST 02/07/2008
Court of Appeal (Civil Division) Sir Anthony Clarke MR, Tuckey, Smith LJJ June 25, 2008
Criminal conduct – Ex turpi causa – Loss of earnings – Post-traumatic stress disorder – Public policy – Criminal conduct bound inextricably with claim – s. 37 Mental Health Act 1983

FACTS

The appellant (G) appealed against a decision that he was not entitled to damages for loss of earnings due to the principle of ex turpi causa. G had been involved in the Ladbroke Grove rail crash. Although G received only minor physical injuries he suffered severe post-traumatic stress disorder which caused him to undergo a significant personality change. G later stabbed a stranger to death. G pleaded guilty to manslaughter and was ordered to be detained in a hospital under the Mental Health Act 1983 s. 37. G brought a claim for damages against the defendants (T) on the basis that, by reason of the post-traumatic stress disorder caused by T’s negligence, he was not able to earn as much as he would have done but for the accident. T admitted that G’s injuries were caused by their negligence and that in principle they were liable for G’s loss of earnings up to the date of the manslaughter. However, they denied liability in respect of losses incurred after the manslaughter on the basis of ex turpi causa. The judge rejected G’s claim for loss of earnings after the manslaughter and held that G fell foul of the ex turpi causa principle derived from Holman v Johnson 98 ER 1120 as his claim was closely connected with or inextricably bound up with his own criminal conduct. G submitted that the judge applied the wrong test, or alternatively, that G’s claim was not connected with or inextricably bound up with the manslaughter in the sense used in the relevant authorities.

ISSUE

Whether the judge applied the wrong test, or alternatively, that G’s claim was not connected with or inextricably bound up with the manslaughter in the sense used in the relevant authorities.

HELD (appeal allowed)

(1) The test in Tinsley v Milligan [1994] 1 AC 340 was too narrow to apply to a case in tort such as the instant. As applied to a case like the instant one, where it was it was not suggested that the cause of action arose out of an illegal act, the question was whether the relevant loss was inextricably linked with G’s illegal act. G’s case was simply that he had suffered a loss because, but for the tort, he would have earned money both before and after the date of the manslaughter and that he was therefore entitled to recover the whole of his loss of earnings from T. The manslaughter was not inextricably bound up with that claim.

(2) The evidential burden of showing that the manslaughter and G’s incarceration amounted to a break in the chain of causation was on T. Unless there was binding authority to the contrary, where the manslaughter did not break the chain of causation or where there was contributory fault on the part of the claimant of less than 100 per cent, so that the claim was not inextricably bound up with or linked with the criminal conduct, public policy did not prohibit recovery, Cross v Kirkby Times, April 5, 2000 (Civ Div) applied. There was nothing in Clunis v Camden and Islington HA [1998] QB 978 CA (Civ Div) or in Worrall v British Railways Board unreported April 29, 1999 CA (Civ Div) that was inconsistent with the decision or reasoning in Cross v Kirby. It followed that there was nothing in them that was inconsistent with the proposition that a claim was not defeated by public policy unless the claim or a head of claim was inextricably bound up with or linked with the criminal conduct. In so far as G claimed loss of earnings, that was not the case and G’s claim should be allowed.

Anthony Scrivener QC and Toby Riley-Smith (instructed by Collins) for the appellant. Christopher Purchas QC (instructed by Halliwells LLP) for the respondents.

Last Updated: 5:27PM BST 02/07/2008
Court of Appeal (Civil Division) Arden, Wall, Wilson LJJ June 16, 2008
Intention – Mesne profits – Notification – Possession – Secure tenancies – Tolerated trespass – Liability of tolerated trespasser to pay mesne profits after giving up possession – Date of giving up possession – Pt IV Housing Act 1985 – s. 85(3) Housing Act 1985

FACTS

The appellant (J) appealed against a decision that he was liable to pay mesne profits as a tolerated trespasser of his local authority flat even after he had given up possession. J had been a secure tenant of the respondent local authority. The local authority had obtained a possession order based on arrears of rent and J had become a tolerated trespasser. J had been shot and wounded at the flat by an unknown assailant and had decided not to return to it. He so informed the local authority and sought to be rehoused by another local authority. J caused a friend to visit the flat and remove J’s possessions. The local authority claimed arrears of rent. The judge held erroneously that J’s liability to pay mesne profits as a tolerated trespasser continued until the local authority accepted that the tenancy had ended. J submitted that his liability for mesne profits ended when he gave up possession. The local authority submitted that a tolerated trespasser’s liability for mesne profits continued until his former landlord was notified that he had given up possession.

ISSUE

Whether a tolerated trespasser was liable to his former landlord for mesne profits after he had given up possession.

HELD (appeal allowed)

(1) A former tenant who wrongfully remained in possession after the end of an ordinary tenancy, not one that was secure under the Housing Act 1985 Pt IV, ceased to be liable for mesne profits when he gave up possession, irrespective of notice, Southport Tramways Co v Gandy [1897] 2 QB 66 considered. There was no indication that the law treated the extent of the liability of the tolerated trespasser to pay mesne profits differently from that of other former tenants who had wrongfully remained in possession. Section 85(3) of the Act, in the context of the stay or suspension of execution of an order for possession against a tolerated trespasser, defined mesne profits as payments in respect of occupation after the termination of the tenancy and, whether or not occupation was synonymous with possession, it was impossible to read into it any element of notification. Furthermore, a tolerated trespasser lost his distinctive status upon giving up possession, irrespective of notification, Dunn v Bradford MDC (2002) EWCA Civ 1137, [2003] HLR 15 applied. The submission that the liability of a tolerated trespasser for mesne profits should continue until his giving not only of possession but also of notification was clearly invalid.

(2) Until he removed his possessions from the flat J remained in factual possession of it. He intended to give up possession of it and did give up possession of it when his friend removed his personal possessions from it, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 applied. The fact that he retained the keys to the flat was in the circumstances not significant, John Laing Construction Ltd v Amber Pass Ltd [2005] L & TR 12 Ch D approved.

Robert Latham (instructed by Hammersmith & Fulham Community Law Centre) for the appellant. Lloyd Sefton-Smith (instructed by in-house solicitor) for the respondents.

Last Updated: 5:26PM BST 02/07/2008
House of Lords Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance June 18, 2008
Criminal evidence – Criminal procedure – Anonymity – Intimidation of witnesses Right to fair trial – Special measures for witnesses – Witnesses in fear of lives Measures taken to hide identity from defence – Lawfulness of measures – Art. 6 European Convention on Human Rights 1950

FACTS

The appellant (D) appealed against the Court of Appeal’s dismissal ([2006] EWCA Crim 1155, [2006] 1 WLR 3130) of his appeal against his conviction for murder. At D’s trial, witnesses who identified him as the killer, and without whom he could not have been convicted, were accepted to be in fear of their lives were it to become known that they had given evidence against him. To protect their safety and to induce them to give evidence the trial judge ordered that each should give evidence under a pseudonym; their addresses, personal details and any particulars that might identify them should be withheld from D and his legal advisers; D’s counsel should not be permitted to ask questions that might enable them to be identified; they should give evidence behind screens so that they could be seen by the judge and the jury but not by D; and their voices should be distorted for all but the judge and jury. The Court of Appeal rejected D’s argument that those measures were contrary to common law and inconsistent with the European Convention on Human Rights 1950 art. 6(3)(d); and it certified the question of whether it was permissible for a defendant to be convicted where the conviction was based solely or to a decisive extent upon the testimony of one or more anonymous witnesses. In addition, the court had to consider the lawfulness of the measures and their effect on the fairness of D’s trial. The Crown submitted that (1) witness intimidation was a prevalent problem and in the instant case the witnesses would not have given evidence unless their identity was withheld from the defence; (2) as indicated in Scott (aka Morgan) v Scott [1913] AC 417, the court’s paramount object was to do justice and if, in order so to do, some adaptation of ordinary procedure was called for, that should happen so long as the overall fairness of the trial was not compromised; (3) the adoption of protective measures was supported by the decision in R v Taylor (Gary) Times, August 17, 1994; (4) Strasbourg jurisprudence did not condemn the use of protective measures; (5) the defendant was protected from unfairness by the Crown’s duty of disclosure.

ISSUES

Whether measures taken to preserve the anonymity of crucial witnesses in a criminal trial, which included preventing the asking of questions that might reveal their identity and allowing them to give evidence out of sight of the defendant and his legal advisers, hampered the conduct of the defence in such a manner and to such an extent that they were unlawful and rendered the trial unfair.

HELD (appeal allowed)

(1) Threats of intimidation to witnesses and the challenges they posed to the trial system were not new but the common law had never responded by allowing witnesses to give evidence anonymously. When considering, in 1972, the problem of witness intimidation in Northern Ireland, the commission chaired by Lord Diplock regarded the common law principle as so fundamental that it was unable to recommend that legislation should be passed to interfere with it. In those circumstances it was not open to the House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the protective measures in the instant case.

(2) Scott addressed the principle that justice had to be administered in public, but recognised that there could be a departure from that rule in some circumstances. However, nothing in Scott was authority for the power of a court to abrogate a long-standing common law right directly bearing on the ability of a criminal defendant to defend himself.

(3) Whilst Taylor was binding on the Court of Appeal, the reasons given to support that and other decisions were not sound. Support in authority was very slight; the court had given no reason for disregarding the judgments in Smith v Illinois 390 US 129 US Court and South Africa v Leepile 1986 SA 1870 which, to the extent that they reflected the common law, were relevant authorities; and there was a degree of inconsistency between the assertion that an accused had a fundamental right to see and know the identity of his accusers save in rare and exceptional circumstances, and the guidance given by the court for the exercise of its discretion in that respect. By a series of small steps, largely unobjectionable on their own facts, the courts had arrived at a position that was irreconcilable with long-standing principle.

(4) While Strasbourg did not set its face absolutely against the admission of anonymous evidence in all circumstances, it did say that a conviction should not be based solely or to a decisive extent on anonymous statements, Doorson v Netherlands [1996] 22 EHRR 330, Kostovski v Netherlands (A/166) [1990] 12 EHRR 434 ECHR and Ludi v Switzerland (A/238) [1993] 15 EHRR 173 ECHR considered. In any event, Strasbourg would not accept that the measures taken in the instant case satisfied the requirements of art. 6. Not only was the witness evidence the sole or decisive basis on which D was convicted, but effective cross-examination was hampered.

(5) The fairness of a trial should not largely depend on the Crown’s diligent performance of its duties, and to decide whether the protective measures operated unfairly it was necessary to consider their impact on the conduct of the defence. D’s defence, which went to the probity and credibility of the witnesses, was gravely impeded by his counsel’s inability to explore who the witnesses were and the nature of their contact with D. Ultimately, the protective measures imposed hampered the conduct of the defence in a manner and to an extent that was unlawful and rendered the trial unfair.

David Perry QC and Simon Ray (instructed by Crown Prosecution Service) for the Crown. Malcolm Swift QC, Susan Rodham (instructed by Goldkorns) for the appellant.

Last Updated: 5:32PM BST 02/07/2008
House of Lords Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury June 25, 2008
Comparators – Disability discrimination – Disabled persons – Knowledge – Local Government possession claims – Public sector tenancies – Schizophrenia – Security of tenure – Appropriate comparator under s. 24(1)(a) of the Disability Discrimination Act 1995 – s. 93 Housing Act 1985 – s. 22(3) Disability Discrimination Act 1995 – s. 24(1)(a) Disability Discrimination Act 1995

FACTS

The appellant local authority appealed against the dismissal of its possession proceedings against the respondent (M). M had been diagnosed with schizophrenia. His condition was stabilised by medication. He had become a secure tenant of the local authority. He had exercised the right to buy his flat but before completion he had sublet his flat. The local authority had not consented to that subletting and accordingly M thereupon ceased to be a secure tenant by reason of the Housing Act 1985 s. 93. It appeared that M had not been taking his medication at the time of the sublet. The local authority then discovered that M had sublet his flat and gave notice to quit and issued proceedings for possession. There was no evidence that the local authority was aware that M suffered from schizophrenia. The possession order was granted and the judge concluded that the causal relationship between the schizophrenia and the subletting was insufficiently established. The Court of Appeal dismissed the possession proceedings, declared that the notice to quit and possession action constituted unlawful discrimination contrary to the Disability Discrimination Act 1995 s. 22(3) and, in accordance with s. 24(1)(a) of the 1995 Act found that there was an appropriate relationship between the reason for the local authority’s actions and M’s illness, and M’s treatment had been less favourable than that of others to whom that reason did not apply. The issues that arose were (i) in order for the alleged discriminator’s reason to relate to the disability for s. 24(1)(a) purposes, was it necessary for the fact of the disability to have played at least some motivating part in the mind of the alleged discriminator in leading him to subject the disabled person to the treatment complained of; (ii) who were to be the comparators, the “others” referred to in s. 24(1)(a) and what characteristics should be attributed to them.

ISSUES

(i) In order for the alleged discriminator’s reason to relate to the disability for s. 24(1)(a) purposes, was it necessary for the fact of the disability to have played at least some motivating part in the mind of the alleged discriminator in leading him to subject the disabled person to the treatment complained of.

(ii) Who were to be the comparators, the “others” referred to in s. 24(1)(a) and what characteristics should be attributed to them.

HELD (appeal allowed) (Baroness Hale dissenting on the issue of comparators)

(1) There was no evidence that the local authority was aware M suffered from schizophrenia and his schizophrenia was not in its mind when deciding to serve notice to quit and take possession proceedings against him. It was not enough for M to show that objectively viewed there may have been a causal connection unknown to the local authority between the sublet and M’s disability. M needed to show that his mental condition played some motivating part in the local authority’s decision to terminate his tenancy and recover possession. That he had not done. The local authority’s reason was that M had sublet and moved out, Taylor v OCS Group Ltd [2006] EWCA Civ 702, [2006] ICR 1602 applied.

(2) Parliament must surely have intended that the comparison directed by s. 24(1)(a) be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not. If a tenant had been given notice terminating his tenancy because he had sublet in breach of the tenancy agreement, there was no point in making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sublet. The statutory comparator would be a secure tenant with no mental illness who had sublet. Such a tenant would have received no different treatment form the local authority than M received. There was no less favourable treatment meted out to M and therefore no discrimination, Clark v TDG Ltd (t/a Novacold Ltd) [1999] 2 All ER 977 (Civ Div) overruled and S v Floyd [2008] EWCA Civ 201, [2008] NPC 34 considered.

(3) (Per Baroness Hale) Parliament could have chosen a form of words which made it entirely plain that it intended the comparison to be made under s. 24(1)(a) to be with people who did not have the disability in question, but Parliament deliberately chose a different formulation. The comparison in the present case ought to be made with people who had not sublet.

James Goudie QC and Stephen Evans (instructed by In-House Solicitor) for the appellants. Jan Luba QC and Sylvester Carrott (instructed by Hartnells) for the respondents.