Law Report: Case Summaries

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THE following notes of judgments were prepared by the reporters of the All England Law Reports.

Costs

Parr and anor v Smith; CA (Sir Thomas Bingham MR, Staughton, Peter Gibson LJJ); 26 Jan 1994.

For the purposes of s17(3)(b) of the Legal Aid Act 1988, a charging order constituted 'execution'. Accordingly, such an order could not be made against a legallly aided party's dwelling house in order to enforce an order for costs.

Michael Yelton (Berry & Walton, King's Lynn) for the appellants; Gerainty Martyn Jones (Ollard & Bentley, March) for the respondents.

Crime

R v Marston; CA (Crim Div) (Russell LJ, Smith, Dyson JJ); 15 Feb 1994.

Where a defendant was charged with a single count of handling stolen goods, although he maintained the count embraced two separate acts of handling, the count was not bad for duplicity. The Crown, when drafting charges, was not bound to accept what the defendant said and to have done so would have been to accept a self-serving statement from a man the Crown alleged was not a credible witness.

Samuel Parrish (Registrar of Criminal Appeals) for the appellant; Simon Russell Flint (CPS) for the Crown.

R v P; CA (Crim Div) (Hirst LJ, Tudor Evans, Laws JJ); 18 Feb 1994.

In a case to which the irrebuttable presumption that a boy under 14 was incapable of committing an offence of which the actus reus included sexual intercourse by him applied (ie where the act complained of was committed before the Sexual Offences Act 1993, which abolished the presumption, came into effect on 20 Sept 1993), a defendant might not be convicted of inciting a boy under 14 to commit incest with his mother since the person incited was not himself legally capable of committing the crime, and the same reasoning applied to a count alleging that a defendant had aided and abetted a boy under 14 to commit incest with his mother. A defendant might, however, be convicted of inciting a woman to commit incest with her son who was under 14, or of aiding or abetting her to commit such an offence since in either case the boy would have been the victim rather than the perpetrator of the offence, and the presumption would not apply.

Robert Atherton (Registrar of CA) for the appellant; David Hale (CPS) for the Crown.

Evidence

R v Middlebrook; CA (Crim Div) (Hirst LJ, Tudor Evans, Laws JJ); 18 Feb 1994.

When considering the juridical basis on which the Court of Appeal could interfere with a trial judge's refusal to exclude evidence under s78 of the Police and Criminal Evidence Act 1984 the court thought it right to notice that the term 'discretion' was sometimes used in the law in different senses. A true discretion consisted in a power which might lawfully be exercised in more than one way, but the power to refuse to admit evidence under the section only arose if the court found that it ought not to be admitted on account of its adverse effect on the fairness of the trial. If it appeared to the judge that that was the case, despite the use of the word 'may' in the section, he could not allow the evidence. It was that judicial exercise which had been referred to as a discretion in R v Christou (1992) 95 Cr app R 264 and R v O'Keary (1988) 87 Cr App R 387 and which because of its nature would not readily be interfered with by the Court of Appeal, although it would, if it found that a reasonable trial judge must have concluded that the admission of the evidence would produce unfairness, set aside a ruling going the other way; it was in that sense that the court understood the Wednesbury principle to have been applied in the above cases.

Roger Keen QC and Peter Kelson (Registrar of CA) for the appellant; Robert Moore (CPS) for the Crown.

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