CASE SUMMARIES v 29 July 1996

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

Crime

DPP v K and B; QB Div Ct (Russell LJ and Scott Baker J); 25 June 1996.

Where the Crown rebutted the presumption of doli incapax ("incapable of crime") in respect of two girls aged 14 and 11, those girls could be convicted of aiding, abetting, counselling and procuring a rape and indecent assault, even though the Crown had not rebutted the presumption of doli incapax in respect of the principal offender. The fact that the principal offender was doli incapax could not affect the actus reus of the offence and the girls had the necessary mens rea.

John McGuinness (CPS) for the Crown; Richard Travers (Peter Fernando & Co) for K; Catherine Popert (Murrays) for B.

R v Giannetto; CA (Cr Div) (Kennedy LJ, Laws, Maurice Kay JJ) 28 June 1996.

Where the prosecution alleged more than one factual basis for the crime charged and it was not possible to say "if it was not the one then it must have been the other", the principle in R v Brown (1984) 79 Cr App R 115 applied. The trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that, if he was not the killer, he at least encouraged the killing.

Charles Barton QC, Ian Bullock (Douglas & Co, Bristol) for the appellant; Paul Chadd QC, Martin Meeke (CPS) for the Crown.

Evidence

R v Cottrill; CA (Cr Div) (Otton LJ, Hidden J, Recorder of Birmingham) 28 June 1996.

Where a written statement made by a defendant to his then solicitors had been voluntarily handed over to the prosecution without any impropriety or sharp practice on the part of the Crown, the question of legal privilege did not arise, and the trial judge could, in exercising his discretion under s 78 of the Police and Criminal Evidence Act 1984, permit the use of that document at the defendant's trial in his cross-examination

J.R. Hodgkinson (Registrar of Criminal Appeals) for the appellant; J. Gosley (CPS) for the Crown.

Sentencing

R v Johnstone (Darren); CA (Crim Div) (Lord Bingham CJ, Ognall J) 17 June 1996.

Given the profusion of legislation now affecting sentencing judges, both prosecuting and defending counsel should monitor sentences expressed by the court at first instance so as to save either the Registrar of Criminal Appeals or the full court from having to interfere on a wholly academic but none the less important basis when dealing with unlawful sentences.

Amjad Nawaz (Registrar of Criminal Appeals) for the appellant.

Solicitor

R v Legal Aid Board, ex p Amoo Gottfried; QBD (Jowitt J); 20 June 1996.

A solicitor had no claim for damages for breach of statutory duty by the regional committee of the Legal Aid Board resulting from his unlawful suspension from the Duty Solicitor Police Sections Scheme, since the beneficiaries of that statutory scheme were those who needed legal advice and assistance not those who provided it. Nor was there any contract or quasi contract between such a solicitor and the Legal Aid Board, breach of which could lead to a claim for damages, since in being suspended all that had occurred was the loss of the opportunity of earning under the scheme.

Cherie Booth QC, Qureshi (Amoo Gottfried) for the applicant; Miss Laing (Legal Aid Board) for the respondent.

Stamp duty

LM Tenancies 1 plc v IRC; ChD (Carnwath J) 21 June 1996.

A taxpayer was liable for ad valorem duty under the Stamp Act 1981, Sch 1, for leases which he had granted, even though the premiums for the leases were to be calculated by reference to the price of Treasury Loan stock at the close of business 25 days after execution of the leases. Although duty could not be levied on a lease where the consideration was unascertainable at the time the lease was executed, the taxpayer was liable because the duty could be ascertained by calculating the premiums on the basis of the price of stock on the closest working day to the execution of the lease.

Roger Thomas (Taylor Vintners, Cambridge) for the taxpayer; Michael Furness (Inland Revenue) for the Crown.

Tax

Nichols v Gibson (HMIT); CA (Leggatt, Morritt, Otton LJJ) 14 June 1996.

A taxpayer's severance payment was chargeable to income tax, by virtue of s 187(1) of the Income & Corpn Taxes Act 1970 [now s 148(1) of the 1988 Act], even though the taxpayer had been neither resident nor ordinarily resident in the UK and was not employed by the employer for the duration of the tax year in which the payment was received. Section 187(1) was independent of s 181(1) of the 1970 Act [s 19(1), (2) of the 1988 Act] and provided for a charge to tax under Sch E not confined to the rules of the Cases under s 181(1). Since s 187(1) required a payment where appropriate to be treated as an emolument of a "past holder" of an office or employment, the severance payment was subject to income tax.

Stephen Brandon QC, Robert Grierson (Pulvers, Watford) for the taxpayer; Timothy Brennan (Inland Revenue Solicitor).

VAT

Trustees of Victoria & Albert Museum v Customs & Excise Commrs; QBD (Turner J) 14 June 1996.

The museum, which made supplies both taxable and non- taxable for VAT purposes, adopted the income-based method of apportionment set out in Appendix J to Customs Notice 700, but was advised that the use-based method would be more advantageous. The income-based method was lawful and had been accepted as fair and reasonable by Customs. There was no error in a return within reg 35 of the VAT Regulations 1995 (SI 2518) and the museum could not retrospectively change to a different method because it was more favourable.

Roger Thomas (Lawrence Graham) for the museum; Stephen Richards (Customs & Excise).

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