West Law Report

R (GURUNG) & OTHERS v MOD

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

KEMP v SIMS & ANR

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

JOHNSON v LUXCOOL LTD

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

ROWE v DOLMAN

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

RUSSELL v GENERAL MEDICAL COUNCIL

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

A v B

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

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.

WESTCOTT v WESTCOTT

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.

R (REDCAR & CLEVELAND BC) v SECRETARY OF STATE FOR BUSINESS ENTERPRISE AND REGULATORY REFORM

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.

R (A CHILD) v DEVON CC & OTHERS

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.

MOD v GRIFFIN

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.

L v LAW SOCIETY

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.

ATTORNEY GENERAL v ITV CENTRAL LTD

Posted in Westlaw Reports by mrkooenglish on July 23, 2008

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.