Law reports: CASE SUMMARIES; 27 November 1995

Notes of judgments

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

Breath test

DPP v Berry; QBD(DC) (Simon Brown LJ, Scott Baker and Latham JJ); 30 Oct 1995

A defendant who had a low level of understanding and was unable to understand the breath-test procedure had not been deprived of his right to have his specimen of breath replaced under s 8(2) of the Road Traffic Act 1988 when it was clear his condition had been made worse by his admitted consumption of alcohol, since the deprivation was self- induced.

Ben Crosland (CPS) for the prosecutor; the defendant did not appear and was not represented.

Contempt

Delaney v Delaney; CA (Sir Thomas Bingham MR, Sir John Balcombe); 24 Oct 1995

A county court judge who found a party guilty of contempt for breaking a court order or undertaking did not have power to remand that party in custody while he considered the appropriate sentence to impose.

Philippa Eade (Rustons & Lloyd, Newmarket) for the appellant; James Munby QC (Official Solicitor) as amicus curiae.

Crime

R v Finnegan and anor; CA (Crim Div)(Roch LJ, Forbes J, Judge Pownall QC); 1 Nov 1995

Section 35(1) of the Banking Act 1987 (fraudulent inducement to make a deposit) does require that the misleading statement should have induced another person to make a deposit. Were that the case then the charge would be one of obtaining property by deception. The offence is complete once the defendant has made a statement which he knows to be misleading, false or deceptive for the purpose of inducing another person to make a deposit with him or another person. The statement does not have to be communicated to the person whom it is intended to induce to make a deposit; it is sufficient if the statement is made and communicated to someone with the necessary intent or purpose.

Peter Collier QC, Jeremy Barnett (Registrar of Criminal Appeals) for the appellant; Stuart Browne QC, Neville Spencer Lewis (CPS) for the Crown.

Practice

Yorkshire Regional Health Authority v Fairclough Building Ltd and anor; CA (Neill, Evans, Millett LJJ); 1 Nov 1995

The substitution of a new party, who had succeeded to a claim or liability already represented in existing proceedings, pursuant to RSC Ord 15, r 7, did not involve the making of a "new claim" as defined in s 35(2) of the Limitation Act 1980 and accordingly s 35(2) did not deprive the court of jurisdiction to order such substitution after expiry of the relevant limitation period.

John Blackburn QC, Martin Bowdry (Hammond Suddards, Leeds) for the second defendants; Nicholas Denny QC and Andrew Goddard (W.J.M. Lovel, Harrogate) for the plaintiffs.

Road traffic

East Staffordshire BC v Rendell; QBD(DC) (Simon Brown LJ, Sedley J); 3 Nov 1995

The holder of an operator's licence for a private hire vehicle in one controlled district committed an offence under s 46(1)(d) of the Local Government (Miscellaneous Provisions) Act 1976 when he redirected his calls from that controlled district to a telephone on premises in an adjacent controlled district for which he held no licence, since he had made provision for the acceptance of bookings in an area for which he held no licence.

Christopher Kinch (Sharpe Pritchard for Council Solicitor) for the council; Jonathan Galbraith-Martin (Batesh Partnership, Manchester) for the defendant.

Witness

R v Davies and ors; CA(Crim Div) (Swinton Thomas LJ, Waterhouse, Harrison JJ); 3 Nov 1995

The test of the competence of a child witness under s 2 of the Criminal Justice Act 1991 is whether the child is able to understand the questions put to him or her, to communicate, to give a coherent and comprehensive account of the matters in relation to which he or she is giving evidence and to distinguish between truth and fiction and between fact and fantasy. Once a child can give a comprehensive account and distinguish between fact and fiction, whether the child is telling the truth or not is a matter for the jury.

The Cleveland guidelines in relation to the conducting of interviews should be regarded as expert advice as to what will normally be the best practice to adopt in seeking to ensure a child's evidence is reliable. In resolving questions that arise under section 32A (video recordings of interviews with children) and the judicial discretion in relation to admissibility under s 78 of the Police and Criminal Evidence Act 1984, the issue was whether fairness required the judge to exclude or to admit the evidence.

Patrick Eccles QC, James Tillyard; Gerald Price QC, Jeffrey Clarke; Ian Peddie QC, Philip D. Marshall; Edward Lyons QC, David J.M. Aubrey; Adrian Fulford QC and Janet Plange (Eaton-Evans & Morris, Haverfordwest); Nigel Mylne QC, Geraint Walters (Paul Settatree & Co, Haverfordwest) for the appellants; Gerard Elias QC, Paul Thomas QC amd Huw Rees (CPS) for the Crown; David Bodey QC (Treasury Solicitor) for the Official Solicitor.

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