Stay available only against party to arbitration
From The Times
December 1, 2008
Stay available only against party to arbitration
Court of Appeal
Published December 1, 2008
City of London v Sancheti
Before Lord Justice Laws, Lord Justice Richards and Lord Justice Lawrence Collins
Judgment November 21, 2008
A stay of an arbitration could be obtained only against a party to that arbitration agreement or a person claiming through such a party; a legal or commercial connection was not sufficient.
The Court of Appeal so held in a reserved judgment in granting permission to, but dismissing the appeal of the defendant, Anchok Sancheti, an Indian solicitor practising in London, against the dismissal by Judge Knight, QC, at Central London County Court on February 12, 2008, of his appeal from the refusal by District Judge Mathias on January 5, 2007 of his application for a stay under section 9 of the Arbitration Act 1996, in proceedings brought by the claimant landlord, the City of London, concerning outstanding rent. Mr Sudhanshu Swaroop for Mr Sancheti; Mr Oliver Radley-Gardner for the City of London.
LORD JUSTICE LAWRENCE COLLINS said that the case concerned the relationship between parties under a bilateral investment treaty and national court proceedings, and, in particular, whether Roussel-Uclaf v GD Searle and Co Ltd ([1978] 1 Lloyd’s Rep 225) was correctly decided.
On January 6, 1995, the United Kingdom-India bilateral investment treaty came into force, providing for international arbitration failing amicable settlement or international conciliation.
After a landlord-tenant dispute, a surveyor appointed by the Royal Institute of Chartered Surveyors determined the rent increase. The landlord sought to recover the balance of the revised rent from Mr Sancheti, who refused to pay and served a notice of dispute under the bilateral treaty on the Treasury Solicitor.
The City of London commenced proceedings claiming £20,144.85 allegedly due. The defendant relied on Roussel-Uclaf in which a subsidiary of a party to an arbitration was held entitled to a stay because of the agreement with its parent company.
Here, the defendant sought a stay of proceedings brought against him by the claimant and thereby sought to impose upon the claimant the burden of an international arbitration to which it was not a party.
But even without such a distinction his Lordship did not consider that Roussel-Uclaf assisted the defendant. In his Lordship’s judgment, it was wrongly decided on that point and should not be followed.
A stay under section 9 could be obtained only against a party to an arbitration agreement or a person claiming through or under such a party and a mere legal or commercial connection was not sufficient.
In the present case, the claimant was not a party to the international arbitration agreement. The relevant party was the United Kingdom Government.
The fact that in certain circumstances a state might be responsible under international law for the acts of one of its local authorities, or might have to take steps to redress wrongs committed by one of them, did not make that local authority a party to the dispute.
Lord Justice Laws and Lord Justice Richards agreed. Solicitors: Morgan Walker; Mrs C. Lawson.
Mass cycle rides need not be notified to police
From The Times
November 27, 2008
Mass cycle rides need not be notified to police
House of Lords
Published November 27, 2008
Regina (Kay) v Commissioner of Police of the Metropolis
Before Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches November 26, 2008
Since a procession could be commonly or customarily held even though on each occasion it took a different route, a monthly mass cycle ride through London which set off from a fixed starting place but the route of which was determined by whoever happened to be at the front at any one time was such a procession so as to be excluded from the statutory requirement for organisers of public processions to give the police prior notice of the event.
The House of Lords so held in allowing an appeal by the claimant, Desmond Woolf Kay, from the Court of Appeal (Sir Mark Potter, President of the Family Division, and Lord Justice Leveson; Lord Justice Wall dissenting) ( The Times June 13, 2007; [2007] 1 WLR 2915) allowing an appeal by the Commissioner of Police of the Metropolis from the decision of the Queen’s Bench Divisional Court (Lord Justice Sedley and Mr Justice Gray) ( The Times July 3, 2006) that the ride was exempted by section 11(2) of the Public Order Act 1986 from the notification requirements of section 11(1).
The claimant, a long standing participant in mass cycle rides which had taken place on the last Friday evening of each month in London since 1994, had sought a declaration that the rides were not public processions of which the organisers were required to give the police notice as to its route under section 11(1). They started on the South Bank near the National Film Theatre and the routes were not fixed.
The Divisional Court held that the event fell within the section 11(2) exception and the appeal to the Court of Appeal had been limited to that point.
Mr Michael Fordham, QC and Ms Emma Dixon for MrKay; Lord Pannick, QC and Mr Jason Beer for the commissioner.
LORD PHILLIPS said that the narrow issue was whether the mass cycle ride was a procession which commonly or customarily held in the Metropolitan Police area. Giving the English language its natural meaning, it was. In order to identify one procession with another it did not have to follow the same route. If there were sufficient similar features of processions that took place at regular intervals, albeit over different routes, it could be natural to describe what occurred as being the same procession.
Lord Pannick had argued that an object of the legislation was to give the police advance notice of marches and processions so as to enable the taking of any necessary measures to prevent them from resulting in public disorder and traffic disruption and that in order to achieve that purpose it was necessary for the police to know the proposed route.
The section 11(2) exception, he had argued, could only sensibly apply to processions that had the same route, and should be so construed.
His Lordship did not accept that argument. Section 11 did not require notice to be given of every procession that was capable of creating a disturbance.
The fact that, on their natural meaning, the words of section 11(2) were wide enough to exclude some processions in respect of which the police did not have all the information that they would wish was no reason to give those words an unnatural meaning.
The words should be given their natural meaning so as to apply to the mass cycle ride as a procession that was commonly or customarily held. For that reason his Lordship would allow the appeal.
However, because of its spontaneous nature and because those who took part in it knew where and when it was to start, it seemed unlikely that the mass cycle ride now involved any advance planning or organisation; if that was the true position, his Lordship did not see how section 11 could have any application to it.
Lord Rodger, Lady Hale and Lord Carswell delivered opinions agreeing that on the assumption that section 11(1) would otherwise have applied, the mass cycle rides fell within the section 11(2) exception.
Lord Brown delivered an opinion allowing the appeal on the ground that, absent any organisers, the rides by their nature were excluded from the requirement of notification under section 11 and so the question under section 11(2) did not arise.
Solicitors: Mr Phil Michaels, Islington; Mr Edward Solomons, Victoria.
No guidelines in cartel plea-bargain sentences
From The Times
November 27, 2008
No guidelines in cartel plea-bargain sentences
Court of Appeal, Criminal Division
Published November 27, 2008
Regina v Whittle
Regina v Allison
Regina v Brammar
Before Lady Justice Hallett, Mr Justice Foskett and Judge Morris, QC
Judgment November 14, 2008
Minimum sentences agreed by United Kingdom employees admitting cartel offences in a plea agreement with the United States authorities and substituted on appeal were not to be treated as guidelines.
The Court of Appeal, Criminal Division allowed sentence appeals by Peter Whittle and Bryan Allison, each imprisoned for three years, and David Brammar, sentenced to 30 months, by Judge Rivlin, QC, at Southwark Crown Court on June 10, 2008, following their guilty pleas to a cartel offence under section 188 of the Enterprise Act 2002.
Mr Adam Kane for Whittle; Mr Mark Ellison, QC, for Allison; Mr Alexander Cameron, QC and Mr Adrian Derbyshire for Brammar; Mr Mark Lucraft, QC, for the Office of Fair Trading.
LADY JUSTICE HALLETT said that neither the sentences imposed by the Court of Appeal, nor those imposed by the judge, were to be treated as guidelines.
A nonexhaustive list of relevant factors indicated by Proposed Criminalisation of Cartels in the UK (OFT 365, Nov 2001) by Sir Anthony Hammond, QC, and Mr Roy Penrose, included: The gravity and nature of the offence, the duration of the offence, the degree of culpability of the defendant in implementing the cartel agreement, whether the defendant’s conduct was contrary to guidelines laid down in his company compliance manual; Mitigating factors included cooperation by the defendant in respect of the inquiry, whether the defendant was compelled to participate in the cartel under duress, whether the offence was a first offence and any personal circumstances which the courts might regard as a factor suggesting leniency.
Although the Court of Appeal had been asked by defence counsel to offer general guidance on sentencing levels in such cases, they were not in a position to do so, because these were the first defendants to be convicted of offences under the 2002 Act and the court had little knowledge of where to place the case in the scale of seriousness for such offences.
Furthermore, the three defendants were bound by the terms of a plea agreement they had entered into with the US authorities, which included their agreement to plead guilty in the US and guilty to a cartel offence in the UK, if they were prosecuted here.
That involved their agreeing not to seek in the UK court a sentence of imprisonment less than than that provided for in the agreement: 2½ years for Whittle, 2 years for Allison and 20 months for Brammar. Those sentences were substituted.
Solicitors: Hallinan Blackburn Gitting & Nott; Peters & Peters; Peters & Peters; Solicitor, Office of Fair Trading.
Confiscation proceedings in a single indictment
From The Times
November 26, 2008
Confiscation proceedings in a single indictment
Court of Appeal, Criminal Division
Published November 26, 2008
Regina v Moulden
Before Lord Justice Pill, Mr Justice Jack and Judge Rogers, QC
Judgment November 11, 2008
The words “proceedings before the crown court” in section 6(2)(a) of the Proceeds of Crime Act 2002 meant proceedings under a single indictment. The expression did not cover everything, in whatever form, before the court on the date when sentence was to be imposed.
The Court of Appeal, Criminal Division, so held when dismissing an appeal by the Crown, under section 31(1) of the 2002 Act against two confiscation orders, one under the Criminal Justice Act 1988 for £3,602.67 and one under the 2002 Act for £23,000, made on September 6, 2007, by Judge Bolton at Newcastle upon Tyne Crown Court against Leanne Moulden who had pleaded guilty, on July 18, 2007, to two counts of attempting to obtain, and one of obtaining a service by deception in 2001 in one indictment and to one count of obtaining services by deception, on December 14, 2003, in a second indictment.
Mr Christopher Knox for the Crown; Miss Katharine Bex, assigned by the Registrar of Criminal Appeals, for the defendant.
LORD JUSTICE PILL, giving the reserved judgment of the court, said that counsel for the Crown had submitted to the sentencing judge that, for the purpose of the legislation, there was a single set of proceedings before her, notwithstanding the presence of two indictments; the first where the offences had been committed before the 2002 Act came into force on March 24, 2003 and the second where the offences had been committed after that date.
Accordingly, the 1988 Act, including the assumptions in section 72AA(4), as inserted by section 2 of the Proceeds of Crime Act 1995, applied and could be used to assess the defendant’s benefit. That would have led to a conclusion that she had benefited to the extent of £524,200.58.
Because some of the offences to be dealt with were committed before March 24, 2003, the effect of article 3(1) of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order (SI 2003 No 333), the Crown submitted, was that all the offences dealt with on September 6, 2007, were subject to the regime in the 1988 Act, including section 72AA.
For the defendant, it was contended that where there were two indictments there were two proceedings for the purposes of section 6(2) of the 2002 Act and the relevant offences for the purposes of article 3 did not include the offence in the second indictment.
The judge ruled that the two indictments reflected two separate sets of proceedings so that the two frameworks applied.
Their Lordships agreed with that ruling and also with the defendant’s submission that a confiscation order in section 31 of the 2002 Act meant a confiscation order made under the 2002 Act; section 31 did not retrospectively create a prosecution right of appeal against an order under the 1988 Act.
Solicitors: Crown Prosecution Service, Newcastle upon Tyne.
Duty to consider other issues
From The Times
November 26, 2008
Duty to consider other issues
Family Division
Published November 26, 2008
In re M (a Child) (Family proceedings: Immigration) and In re N (a Child) (Family proceedings: Immigration)
Practitioners in family proceedings representing a parent who was also involved in some other relevant matter such as an immigration or housing dispute or criminal case had an ongoing duty to remain au courant with those other issues.
Mr Justice Munby so stated in the Family Division, in a reserved judgment, on October 6, 2008. In each case the hearing had proved abortive because of the failure of those acting for the parent properly to ascertain what was going on in the parallel immigration proceedings. The result was delay, waste of public money and the prejudice of other litigants who were case ready. Leave was given to report the part of the judgment that related to the procedure to be followed in such cases.
HIS LORDSHIP said that a court considering whether to make a residence order was bound to have regard to how capable each parent was of meeting the child’s needs and required the most up-to-date information.
Practitioners had a duty to find out from professionals acting for their client in any other relevant matter the stage those matters had reached.
It was preferable to obtain copies of correspondence and documents to minimise uncertainty and misunderstanding.
If practitioners were finding it difficult to obtain relevant information, the court should be approached for a peremptory order or an order pursuant to the President’s Protocol: Communicating with the Home Office([2004] 1 FLR 638), supplemented by Guidance from the President’s Office: Communicating with the Home Office (January 2006) requesting the relevant information.
Judge entitled to comment on rape complaint delay
From The Times
November 26, 2008
Judge entitled to comment on rape complaint delay
Court of Appeal, Criminal Division
Published November 26, 2008
Regina v Doody
Where a defendant raised delay to undermine the credibility of a complainant in a rape case, an appropriate warning to the jury was necessary to ensure fairness to the complainant.
The Court of Appeal, Criminal Division (Lord Justice Latham, Mr Justice Mackay and Mrs Justice Dobbs) so stated on October 24, 2008, when giving reasons for dismissing, on August 4, 2008, the appeal of John Doody against his conviction on June 8, 2007 at Wolverhampton Crown Court (Judge Challinor and a jury) on six counts of rape and one count of sexual assault by penetration.
LORD JUSTICE LATHAM said that the judge was entitled to make comment as to the way evidence was to be approached, particularly in areas where there was a danger of a jury coming to an unjustified conclusion without an appropriate warning.
Cases where a defendant raised the issue of delay as undermining the credibility of a complainant fell into a similar category as those relating to identification or the treatment of lies, save that the need for comment was in this instance to ensure fairness to the complainant. But any comment had to be uncontroversial.
The fact that the trauma of rape could cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape was sufficiently well known to justify a comment to that effect.
The judge was entitled to add the particular feelings of shame and embarrassment which might arise when the allegation was of sexual assault by a partner. He was also entitled to remind the jury of the way in which the complaint in fact emerged.
Jail justified for flytipping
From The Times
November 25, 2008
Jail justified for flytipping
Court of Appeal, Criminal Division
Published November 25, 2008
Regina v Kelleher
Before Lord Judge, Lord Chief Justice, Mrs Justice Swift and Mr Justice Maddison
Judgment November 6, 2008
A custodial sentence could be appropriate for an offence of commercial flytipping even where aggravating features, such as depositing waste of a dangerous or offensive nature, were not present.
The Court of Appeal, Criminal Division, so stated when dismissing an appeal by James Gerard Kelleher against a 14-month prison sentence imposed by Judge Philpot at Inner London Crown Court on June 12, 2008, following his plea of guilty to conspiracy to deposit controlled waste unlawfully, contrary to section 33 of the Environmental Protection Act 1990.
Mr Nicholas Hinchliffe, QC, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Andrew Colman and Mr Howard McCann, solicitor, for the Environment Agency.
MRS JUSTICE SWIFT, giving the judgment of the court, said that the appellant and his codefendant were the organisers, over an 18-month period, of a wide scale operation unlawfully to deposit controlled waste material.
The disposal of waste in accordance with the law involved significant costs. Those individuals or companies who were prepared to make a business out of collecting waste and disposing of it unlawfully stood to make large profits at the expense of the environment and of those whose sites had been polluted.
As a result, commercial flytipping had become a serious problem. Penalties imposed for breaches of the law in that area had to be sufficient to deter such profiteering.
It was significant that Parliament had considered it appropriate, in the Clean Neighbourhoods and Environment Act 2005, to increase the maximum penalty for the deposit of waste which did not constitute special waste to five years imprisonment, the same level as that for special waste.
That strongly suggested that it was contemplated that significant sentences, including custodial sentences, were appropriate even without endangering human health or dumping noxious substances.
A custodial sentence might be appropriate if, as here, the breach concerned was deliberate, repeated, large scale, highly organised, financially motivated and highly profitable or combined any of those features.
Solicitors: Mr Daniel Wiley, Bristol.
Landlord must prove breach of condition
From The Times
November 25, 2008
Landlord must prove breach of condition
Court of Appeal
Published November 25, 2008
Wandsworth London Borough Council v Whibley
Before Lord Justice Tuckey, Lord Justice Sedley and Lord Justice Lawrence Collins
Judgment November 14, 2008
While it was possible to have a summary disposal of applications to fix a date in a landlord’s possession action, an unsupported assertion that the tenant had to answer did not suffice to procure a hearing, and nor would a bare denial amount to an answer.
The Court of Appeal so held in a reserved judgment in dismissing an appeal brought by the landlord, Wandsworth London Borough Council, against the refusal by Judge Hallon, on January 23, 2008, at Wandsworth County Court, to give summary judgment for possession to the landlord against the tenant, David Whibley.
Mr Jon Holbrook for Wandsworth; Mr Robert Latham and Mr Jim Shepherd for Mr Whibley.
LORD JUSTICE SEDLEY said that section 85(2)of the Housing Act 1985 permitted the court making the possession order to stay or suspend its execution or to postpone the date of possession, in either case for such period or periods as the court thought fit, upon mandatory conditions as to rent arrears and discretionary conditions as to any other matters.
If the conditions were complied with, sub-section (4) allowed the order to be discharged or rescinded; but, on present authority, a single noncompliance put that step beyond the court’s reach. That was why a postponed possession order had come to be used as a less problematical alternative to a suspended order.
The latter, by terminating the tenancy but withholding possession in many cases indefinitely, left both landlord and tenant in a limbo in which the tenant had been aptly characterised as a tolerated trespasser, with no affirmative rights but a status of irremovability.
That unsatisfactory situation was avoided by a postponed order, which preserved the tenancy pending discharge of the order, further postponement or the fixing of a date for possession.
The defendant had been a tenant since 1996 under a secure tenancy. In 2005 he was convicted of cultivating cannabis in his flat. The grounds given in the possession notice were arrears of £615.12 and nuisance by growing cannabis.
The claim for possession was tried before a district judge in November 2006. He found the grounds made out and held it reasonable to make a postponed possession order, with conditions of postponement relating both to payment of rent and arrers and to observing the terms of the tenancy.
The order as drawn, however, referred only to the rent; it was not amended until the crucial hearing before another district judge on September 19, 2007.
The day before the September 19 hearing, the defendant’s solicitors served a cross-application returnable on the same hearing, seeking an adjournment of the landlord’s application with directions for a full hearing and for further postponement of possession or suspension of the warrant.
When the cross-applications came before the second district judge, the landlord relied on the nuisance claim provided it could be determined without live evidence, which the district judge declined to do.
Instead, he set directions for a hearing on the first open day and gave the landlord permission to appeal his directions. The appeal was fixed for January 10, 2008, but for want of time the case was adjourned to the date set for the hearing of the substantive applications.
On that date, however, rather than go ahead with the application to fix a date for possession, the landlord used the allocated day before Judge Hallon to pursue its appeal against the district judge’s directions.
Its object, then and now, was to secure a ruling that, save in quite exceptional cases of which this was not one, county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order.
The landlord in a case like the present had proved arrears and nuisance and had obtained a possession order postponed on specified conditions; what it had not yet proved was a breach of one or more of those conditions, and without such proof it could not ask the court to fix a date for possession.
That was the problem which faced the district judge here, and he was manifestly in no position to resolve it summarily in the claimant’s favour. An adjournment was unavoidable.
In many cases, the discharge of the obligation to consider whether or not it was right to make an order for possession would lead to summary judgment where no triable issue had been advanced. But that was not the case here and the appeal would be dismissed.
Lord Justice Lawrence Collins and Lord Justice Tuckey agreed.
Solicitors: Ashfords; Flack & Co, Wandsworth.
No sentencing guidance can be comprehensive
From The Times
November 24, 2008
No sentencing guidance can be comprehensive
Court of Appeal, Criminal Division
Published November 24, 2008
Regina v Height and Regina v Anderson
Before Lord Judge, Lord Chief Justice, Lord Justice Thomas, Lord Justice Leveson, Mr Justice Owen and Mr Justice Christopher Clarke
Judgment October 29, 2008
The sentencing provisions of the Criminal Justice Act 2003 were not intended to be applied inflexibly. No scheme or guidance or statutory framework could be fully comprehensive, and any system of purported compartmentalisation or prescription had the potential to produce injustice.
The Court of Appeal, Criminal Division, so stated when allowing an appeal by John Height and dismissing an appeal by Malcolm Anderson against sentences of life imprisonment with minimum specified terms of 24 years and 22 years respectively imposed by Judge Stokes, QC, on April 30, 2007 in Nottingham Crown Court on Height’s conviction of, and Anderson’s plea of guilty to murder.
Mr Timothy Barnes, QC, assigned by the Registrar of Criminal Appeals, for Height; Mr Christopher Milligan, solicitor, assigned by the Registrar of Criminal Appeals, for Anderson; Mr Greg Dickinson, QC and Mr Jonathan Straw for the Crown.
THE LORD CHIEF JUSTICE, giving the reserved judgment of the court, said that for all practical purposes Anderson was Height’s boss. Anderson gave evidence for the Crown that he had spoken to Height about getting rid of his wife. Height had said that it could be arranged for a price of £20,000.
In the event it was Anderson who struck his wife with a saucepan and hammer, stabbed her with a knife and finally cut her throat. Then he and Height dragged her body to the river where it was found the next morning.
In accordance with his understanding of the statutory obligation imposed on him by section 269 of and Schedule 21 to the Criminal Justice Act 2003, the sentencing judge identified the relevant starting points as 30 years in the case of Height because it was a killing done in pursuit of financial gain and as 15 years in Anderson’s case since he did not stand to gain financially.
Their Lordships had lost count of the number of times when the Court of Appeal had emphasised that these provisions were not intended to be applied inflexibly. Indeed an inflexible approach would be inconsistent with the terms of the statutory framework.
If paragraph 6 of Schedule 21 was read literally, and in isolation from the remaining parts of the Schedule, it might suggest that any case which fell outside the express criteria identified in paragraph 4(2) and 5(2) should have a 15-year starting point.
But, in their Lordships’ judgment, the criteria which purported to identify those cases where the seriousness was particularly high, suggesting a starting point of 30 years, were not exhaustive of the cases which fell in that category and did not exclude the possibility that in some cases, probably rare, the seriousness might be such as to justify the 30-year starting point, even when the express criteria normally required for that purposes were absent.
Although Height’s financial motivation made a 30-year starting point appropriate, Anderson’s culpability, with all the many aggravating features, should also have been regarded as a case of particularly high seriousness, and the same starting point adopted.
Height’s minimum term would accordingly be reduced to 22 years. Anderson had no legitimate complaint about his minimum term of 22 years so that his application would be refused.
Solicitors: Crown Prosecution Service, Nottingham.
Overall criminality relevant
From The Times
November 24, 2008
Overall criminality relevant
Court of Appeal, Criminal Division
Published November 24, 2008
Regina v Herbert, Regina v Harris, Regina v Hulme (Joseph), Regina v Hulme (Danny) and Regina v Mallett
Before Lord Judge, Lord Chief Justice, Mr Justice Owen and Mr Justice Christopher Clarke
Judgment October 29, 2008
Even a definitive sentencing guideline was not to be used or approached as if each offence could be put into a fixed and inflexible compartment. The assessment of the seriousness of an offence involved a broad judgment of the overall criminality.
The Court of Appeal, Criminal Division, so stated when dismissing an appeal by Brendan Harris but allowing to a limited extent an appeal by Ryan Herbert against sentences imposed by Judge Russell, QC, at Preston Crown Court on August 11, 2007, of detention at her Majesty,s pleasure with minimum recommended terms respectively of 18 years and 16 years, three months on Harris’s conviction for, and Herbert’s plea of guilty to murder (count 1). Their appeals against sentences of detention for public protection on their pleas of guilty to causing grievous bodily harm with intent (count 2) were dismissed as were the appeals of Danny Hulme, Joseph Hulme and Daniel Mallett against similar sentences on that count.
Mr Richard Marks, QC, assigned by the Registrar of Criminal Appeals, for Herbert; Mr Andrew O’Byrne, QC, assigned by the Registrar, for Harris; Mr Paul Reid, QC, assigned by the Registrar, for Joseph Hulme; Mr Anthony Maurice Cross, QC, assigned by the Registrar, for Danny Hulme; Mr David Fish, QC, assigned by the Registrar, for Mallett; Mr Michael Shorrock, QC, for the Crown.
THE LORD CHIEF JUSTICE, giving the reserved judgment of the court, said that the five appellants, all teenagers, had savagely and mercilessly attacked and beaten unconscious a young man of 21 and, when his girlfriend intervened, two of the appellants turned on her and subjected her to an equally vicious beating, causing serious head injuries from which she died 14 days later.
Herbert pleaded guilty to murder and Harris was convicted of the murder. All the appellants pleaded guilty to causing grievous bodily harm with intent to the young man.
In setting the minimum terms to be served by Harris and Herbert before they could be considered for release on parole, the judge took as his starting point the period of 12 years indicated by Schedule 21 to the Criminal Justice Act 2003. The judge said that if the appellants had been over 18 the starting point under Schedule 21 would have been 30 years.
In their Lordships’ judgment, the judge’s approach could not be faulted. It was correct that the case did not fall within any of the categories in paragraph 5(2)(a) to (h) of the schedule, but, as explained in R v Height ( The Times November 24, 2008) those categories of offence were not exhaustive.
Nevertheless, Herbert’s minimum term would be reduced to 15 years 6 months because he had shown an element of remorse in addition to pleading guilty.
When sentencing the appellants for the grievous bodily harm offence the judge had correctly, in their Lordships’ judgment, concluded that the dangerous offender provisions applied.
In setting the notional determinate sentence he had had regard to the guidelines laid down by the Sentencing Guidelines Council.
The recommended starting point, where a defendant was under 18, for setting the notional determinate sentence for the gravest cases was 13 years, with a sentencing range of 10 to16 years.
Even though the guideline was directed to the sentencing of those over the age of 18, the judge had taken proper account of the age of the appellants because, having placed the offence at the top of the range, it was clear that he had reduced the notional determinate sentence to 13 years to reflect their youth.
Solicitors: Crown Prosecution Service, Preston.
Minister’s unsupervised detention power limited
From The Times
November 21, 2008
Minister’s unsupervised detention power limited
Court of Appeal
Published November 21, 2008
Regina (Zimbabwe) v Secretary of State for the Home Department
Before Lord Justice Laws, Lord Justice Keene and Lord Justice Longmore
Judgment November 6, 2008
Ministerial power to detain an overstaying immigrant was limited only to the process of deportation; any detention under the immigration provisions would be subject to the control of the courts, principally by way of judicial review.
The Court of Appeal so stated allowing an appeal by the Secretary of State of the Home Department and dismissing the cross-appeal of the claimant, SK, from Mr Justice Munby ([2008] EWHC 98 (Admin)) who he had (i) granted a declaration that the claimant, an overstayed immigrant, had been unlawfully detained by the Home Secretary for various past periods amounting to 19 months, but (ii) declined to make an order for the claimant’s release on the ground that his then current detention was lawful.
Mr Robin Tam, QC and Mr Martin Chamberlain for the Home Secretary; Mr Andrew Nicol, QC and Mr Alex Goodman for SK.
LORD JUSTICE LAWS summarised the reach of the power conferred by paragraph 2(2) of Schedule 3 to the Immigration Act 1971 as follows:
1 Compliance with the Detention Centre Rules (SI 2001 No 238) and the Home Office Operations Enforcement Manual was not a condition precedent to lawful detention pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971.
The statute did not make it so; contrast section 34(1) of the Police and Criminal Evidence Act 1984 and Roberts v Chief Constable of Cheshire Constabulary ( The Times January 27, 1999; [1999] 1 WLR 662); neither did the common law, nor the law of the European Convention on Human Rights.
2 Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) required that in every case the principles of R v Governor of Durham Prison, Ex parte Hardial Singh ([1984] 1 WLR 704) should be complied with. That limited the detention to such period of time as was reasonably necessary to carry out the process of deportation.
3 It was elementary that exercise of the power of detention, being an act of the executive, was subject to the control of the courts, principally by way of judicial review. That was also required by article 5.4 of the Human Rights Convention. The focus of judicial supervision in any particular context would be upon the Hardial Singh principles.
4 In the event of a legal challenge in any particular case, the Home Secretary should be in a position to demonstrate by evidence that those principles had been and were being fulfilled. However, the law did not prescribe the form of such evidence. Compliance with the 2001 Rules and the Manual would be an effective and practical means of doing so.
It was anyway the Home Secretary’s duty so to comply and it was firmly to be expected that hereafter that would be conscientiously done.
Lord Justice Keene and Lord Justice Longmore agreed. Solicitors: Treasury Solicitor; Lawrence Lupin.
West Law Report 
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