Law Report: Case Summaries

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

Abuse of Process

R v Ampthill Magistrates' Court, ex p Neely; QB Div Ct (Mann LJ, Sedley J); 21 July 1993.

A court had a limited power to dismiss or set aside a summons to prevent an abuse of process, and no power to do so because it disapproved of the prosecutor's motive.

The applicant in person; Peter Birts QC and Simon P Browne (instructed by Alsop Wilkinson, and by Burges Salmon, Bristol) for the various respondents.

R v Lincoln City Magistrates' Court, ex p Wickes Building Supplies Ltd; QB Div Ct (Mann LJ, Sedley J); 22 July 1993.

It was not an abuse of process for a council to stack up a multiplicity of charges against a company, alleging Sunday trading offences under s 47 of the Shops Act 1950, which could not be tried until the lawfulness of the legislation had been determined by the European Court of Justice.

Alan Moses QC and Jeremy Richardson (Metcalfe Copeman & Pettefar, Wisbech) for the applicant; Judith Jackson (Sharpe Pritchard, for Lincoln City Council) for the prosecution.

Crime

R v Kenny; CA(Cr Div) (Hirst LJ, Ian Kennedy, Hidden JJ); 16 July 1993.

In determining whether a defendant was mentally handicapped within the meaning of s 77(3) of the Police and Criminal Evidence Act 1984, the figures produced by particular intelligence tests in one case should not be taken and applied slavishly in another case, in order to define a rigid and unswerving line, the crossing of which would automatically lead to the exclusion of evidence. Each case must be considered on its facts and no hard and fast line could be drawn.

Veronica Ramsden (Registrar of Criminal Appeals) for the appellant; Graham Blower (CPS, Harrow) for the Crown.

Children

Essex County Council v R: FD (Thorpe J); 23 July 1993.

In cases under the Children Act 1989, the court, when considering the welfare of the child, had a responsibility to investigate any material which was relevant to the determination of the welfare issue, and could override legal professional privilege. Lawyers in possession of material relevant to the interests of the child but contrary to the interests of their clients, were not only unable to resist disclosure by claiming legal professional privilege, but had a positive duty to disclose such material to the other parties and the court. Otherwise, a statement of real significance in judging the potential risk of parents would go unsurveyed, resulting in a distorted assessment of that risk.

Ian Karsten QC and Peter Wain (Chief Executive, Essex County Council) for the local authority; Judith Parker QC and Susan Quinn (Campions) for the father; Patricia Scotland QC and Kharin Cox (Duffields, Chelmsford) for the mother; Michael Kallipetis QC and Caroline Harry Thomas (Gepp & Sons, Chelmsford) for the paternal grandparents; Lionel Swift QC and Elizabeth Coleman (Simpson Robertson, Rayleigh) for the guardian ad litem.

Legal Aid

R v Liverpool Magistrates' Court, ex p Pender; QB Div Ct (Watkins LJ, Leonard J); 20 July 1993.

In reg 10 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (SI 344) the word 'court' included a magistrates' court, and 'other proceedings' referred both to pre-trial and post-trial proceedings. A defendant whose legal aid order had been revoked because of non-payment of contributions could therefore re-apply for legal aid at remand proceedings in the magistrates' court under reg 10.

Andrew Nicol (R M Broudie & Co, Liverpool) for the applicant; Ian Burnett (Treasury Solicitor) for the respondent.

Divorce

Jackson v Jackson; CA (Lloyd, Butler-Sloss, Roch LJJ); 14 July 1993.

Section 5(1) of the Matrimonial Causes Act 1973 required a judge first to determine whether the dissolution of a marriage would result in grave financial hardship, and if so, then to consider whether in all the circumstances it would be wrong to dissolve the marriage. Income support was a relevant factor when determining whether, if divorced, a wife would suffer grave financial hardship.

Alexandra Scott (J P Simmonds & Co, Oakham) for the wife; Mark Rogers (Frase Wise & Co, Grantham) for the husband.

Tax

Mairs (Inspector of Taxes) v Haughey; HL (Lord Griffiths, Lord Ackner, Lord Browne-Wilkinson, Lord Mustill and Lord Woolf): 22 July 1993.

A lump sum paid to the employees of Harland and Wolff as compensation for loss of rights under an advantageous redundancy scheme which was discontinued when the shipyard was sold to a private purchaser, was not taxable as an emolument of their employment. A redundancy payment under the scheme would not have been taxable, and a payment made to satisfy such a contingent right derived its character from the nature of the payment which it replaced.

Patrick Coughlin QC and R E Weatherup (Inland Revenue Solicitor) for the Crown; Andrew Park QC and John Thompson (Eversheds, Birmingham) for the taxpayer.

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