CASE SUMMARIES 1 July 1996

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

Counsel

R v Batt; CA (Cr Div) (Stuart-Smith LJ, Nelson J, Judge Capstick QC) 17 May 1996.

It was generally undesirable for husband and wife, or other partners living together, to appear as counsel on opposite sides in the same criminal matter, for that might give rise to an apprehension that the proper conduct of the case had in some way been affected thereby.

Robert Duval (Registrar of Criminal Appeals) for the appellant; PDC Warren (CPS) for the Crown. Neither counsel appeared below.

Planning

R v Beard; CA (Cr Div) (Hobhouse LJ, Ebsworth and Sachs JJ) 10 May 1996.

The defence under s 179(3) of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) to a charge under s 179(2) of failing to comply with an enforcement notice was not available to an owner of land who had the power to comply with the notice without the assistance of others. The necessary implication of the words "everything he could be expected to do to secure compliance" in the subsection was that the owner was having to secure compliance or assistance from another.

Anthony Crean (Registrar of Criminal Appeals) for the appellant; Paul Tucker (Legal Dept, Lancaster City Council) for the Crown.

Sentencing

R v Edwards, R v Brandy; CA (Cr Div) (Holland J, Judge Stephens QC) 9 May 1996.

Before prosecuting burglary in the magistrates' court the prosecution should be very careful to ensure that the offence did not include any of the features specified in the Practice Direction (Mode of Trial: Guidelines) (1990) 92 Cr App R 142, [1990] 1 WLR 1439 (the purpose of which was to help justices decide whether or not to commit "either way" offences for trial at the Crown Court), and that the justice of the case would be met by a sentence of up to six months' imprisonment.

J Wilcox (Registrar of Criminal Appeals) for Edwards; M Landsbury (Registrar) for Brandy.

R v Mitchell; CA (Cr Div) (Otton LJ, Latham, Harrison JJ) 9 May 1996.

Where the preconditions for the making of a hospital order under s 37 of the Mental Health Act 1983 were satis- fied, and there was a bed available, a hospital order rather than a prison sentence should be imposed. A judge who imposed a discretionary life sentence in such circumstances was thus in error, as he was in taking the view that the decision when to release the defendant should be for the Home Secretary. The ultimate decison lay with a discretion- ary lifer panel of the Parole Board operating under s 34 of the Criminal Justice Act 1991.

Edward Fitzgerald QC (Registrar of Criminal Appeals) for the appellant.

Tax

Whittles (HMIT) v Uniholdings Ltd (No 3); CA (Nourse, Aldous LJJ, Sir John Balcombe) 14 May 1996.

Losses consequent on the depreciation of sterling on the repayment of a US dollar loan could not be set off against a corresponding gain accruing on a forward contract for US dollars purchased as a hedge to mitigate any losses on repayment of the loan. The gain on the forward contract was a chargeable gain for corporation tax purposes by virtue of s 21(1)(a) of the Taxation of Chargeable Gains Act 1992, while the loss on the loan contract was not an allowable loss because repayment of the loan was not the "disposal of an asset" within s 29 of the Act. While application of the principle in WT Ramsay Ltd v IRC [1982] AC 300 in favour of a taxpayer was not ruled out, the loan contract and the forward purchase could not be regarded as a single composite transaction resulting in no chargeable gain.

Christopher McCall QC, Launcelot Henderson (Inland Revenue); Andrew Thornhill QC, Giles Goodfellow (Herbert Smith) for Uniholdings.

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