CASE SUMMARIES: 9 October 1995

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

Counsel

R v Green; CA(Crim Div)(Otton LJ, Rougier, Waller JJ); 15 September 1995

The appellant, convicted of robbery, appealed on the ground that his counsel had advised him not to give evidence, and thereby he had been deprived of that right. The mere fact that counsel may make a decision or take a course which later appears to be mistaken or ill advised or "merely cautious" can rarely be regarded as a proper basis for allowing an appeal. Even if the decision was mistaken it could not possibly be regarded as incompetent, let alone flagrantly incompetent advocacy, so as to raise a lurking doubt that the appellant might have suffered some injustice so as to render the verdict unsafe and unsatisfactory.

Anthony Edie, who did not appear below (Registrar of Criminal Appeals) for the appellant; Alison Baker (CPS) for the Crown.

Discrimination

Graham and ors v Secretary of State for Social Security and anor; ECJ; 11 August 1995

Where, pursuant to article 7(1)(a) of Council Directive 79/7, a member state had set the pensionable age for women at 60 and that for men at 65, that provision also allowed it (1) to provide that the rate of invalidity pension payable to persons becoming incapacitated for work before they reached pensionable age was to be limited to the actual rate of retirement pension from the age of 60 in the case of women and 65 in the case of men and (2) to reserve entitlement to invalidity allowance, payable in addition to invalidity pension, to those persons who were under 55 in the case of women and under 60 in the case of men, at the time when they first became incapacitated for work. The discrimination was objectively and necessarily linked to the setting of different pensionable ages for women and men and did not contravene Community law where such forms of discrimination were objectively necessary in order to avoid disturbing the financial equilibrium of the social security system or to ensure coherence between the retirement pension scheme and other benefit schemes.

Evidence

R v Rankin; CA(Crim Div)(Swinton Thomas LJ, McCullough, Newman JJ); 26 July 1995

A decision under s 78 of the Police and Criminal Evidence Act 1984 that evidence ought not to be excluded is a decision only about the effects of its admission on the fairness of the proceedings. The weight to be attached to it, if admitted, is a matter for the jury or the judge himself should a submission be made at the close of the case for the prosecution.

Paul Lewis (Registrar of Criminal Appeals) for the appellant; Richard Twomlow (CPS) for the Crown.

Procedure

Societe d'Informatique Service Realisation Organisation v Ampersand Software BV; ECJ; 11 August 1995

Uniform application of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968, as amended, in all the contracting states precluded parties against whom enforcement was sought in some states from enjoying greater procedural possibilities than in other contracting states for delaying the enforcement of an enforceable judgment given in the contracting state of origin. Articles 37 and 38, as amended, were to be interpreted as meaning that a decision by which a court, seised on an appeal against authorisation to enforce an enforceable judgment of a court in another contracting state, refused a stay or lifted a stay previously ordered, could not be contested by an appeal limited to the examination of a point of law.

Trade

Groupement National des Negociants en Pommes de Terre de Belgique v ITM Belgium SA and anor; ECJ; 11 August 1995

Trade between member states was not likely to be impeded by the application to products from other member states of national provisions restricting or prohibiting certain selling arrangements, so long as the provisions applied to all relevant traders operating in the national territory and affected in the same manner, in law and in fact, the marketing of domestic products and those from other states. Legislation in a member state which prohibited traders from offering for sale or selling a product at a loss and which provided that any sale which yielded only a very low profit margin was to be treated as a sale at a loss did not constitute a measure equivalent to a quantitative restriction on imports between member states within article 30 of the EC Treaty.

CORRECTION: The title of the law report published on 28 September should have been S (a minor) v Special Educational Needs Tribunal, as the court made an order to preserve the child's anonymity. Counsel for the education authority was Tanya Callman.

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