Law Report: Case Summaries

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

Arbitration

Crown Estate Commrs v John Mowlem & Co Ltd; CA (Russell, Stuart-Smith LJJ, Sir John Megaw); 29 July 1994.

The court did not have power under s 27 of the Arbitration Act 1950 to extend the time for commencing arbitration proceedings under cl 30.9.3 of the JCT Standard Form of Building Contract (1980, PwQ), which provided that 'If any arbitration . . . proceedings have been commenced by either party within 28 days after the Final Certificate has been issued, the Final Certificate shall have effect as conclusive evidence . . . save only in respect of all matters to which those proceedings relate', since, on its true construction, the clause did not lay down any time limit for commencing proceedings, and there was in effect nothing for the court to extend.

Richard Seymour QC (Rowe & Maw) for the appellant; John Marrin QC (Speechly Bircham) for the respondents.

Children

R v Central Criminal Court, ex p Godwin & Crook; CA (Cr Div) (Glidewell LJ, Blofeld, Buxton JJ); 19 July 1994.

A trial judge had a complete discretion to allow representatives of those parties whom he considered had a legitimate interest in the making of, or in opposing, an order under s 39 of the Children and Young Persons Act 1933, to make representations to him about the order before he made it. If the judge decided to make the order, he should make clear what the terms of the order were. If there was any possible doubt as to which child or children the order related, the judge or magistrate had to identify the relevant child or children with clarity. A written copy of the order should be drawn up unless the judge or magistrate had made the order orally.

Miss Godwin and Mr Crook in person; Peter A B Jackson (M E Rosenthal) for the children.

Firearms

R v Jones (Terence); CA (Cr Div) (Hirst LJ, Auld, Longmore JJ); 28 July 1994.

A holder in a public place of a shotgun or any other firearm in circumstances specified in s 19 of the Firearms Act 1968 might be without lawful authority, and in breach of the section for that reason, whether or not he held a firearm or shotgun certificate. A belief in lawful authority based on facts which, if true, could not amount to lawful authority, was not capable of being a defence of reasonable excuse to a charge under s 19.

Piers Wauchope (Registrar of Criminal Appeals) for the appellant; Mrs J B O'Malley (CPS) for the Crown.

Hair sample

R v Cooke (Stephen); CA (Cr Div) (Glidewell LJ, Blofeld, Buxton JJ); 22 July 1994.

A sample of hair plucked from the scalp of a person in police custody without his consent was a 'non-intimate sample' as defined by s 65 of the Police and Criminal Evidence Act 1984. The taking of such a sample was therefore authorised by s 63(3) of the Act, subject to the procedural requirements of s 63(3)(a) and (b).

Gilbert Gray QC, James Tabor (Kelcey & Hall, Bristol) for the appellant; Frances Gilbert QC, Peter Murphy (CPS) for the Crown.

Long trials

R v Kellard, Dwyer, Wright; CA (Cr Div) (Farquharson LJ, Gatehouse, Scott Baker JJ); 29 July 1994.

In any large fraud case or one of potentially unusual length, the prosecutor was under a duty to consider, before the preparatory hearing, whether the case could properly be tried in parts rather than as a whole, and then to review the evidence and decide how much of it, though relevant, could be withheld in the interest of time and clarity. A solution might be achieved by counsel for both sides agreeing to submit a proposal for severance of the indictment to the trial judge, though that might result in the prosecution's case being weaker. The correct approach was to consider whether the length of the trial created a situation in which a fair trial was impossible.

Douglas Hay QC, Roger Offenbach (Offenbach & Co) for Kellard; David McEvoy QC, Benjamin Nicholls (The Smith Partnership, Derby) for Dwyer; Nigel Mylne QC, Stephen Clayton (Smith Partnership) for Wright; Timothy Barnes QC, Collingwood Thompson (CPS) for the Crown.

Occupation

R v Ealing London Borough Council, ex p Zainuddin; QBD (Tucker J); 11 July 1994.

There was no need for a structure to have a roof before it could be held to be a building, but a single gathering held in such a building could not be described as 'occupation' or 'occupancy' since there was no use of the building on a settled basis. Where, as in this case, the building was a mosque, occupancy would only be established once the appropriate furnishings had been installed and when the premises were used as a place of worship.

Richard Drabble (Bates Wells & Braithwaite) for the applicant; Mary Macpherson (Richard Polson) for Ealing.

Conduct

R v Clarke, Jones; CA (Cr Div) (Evans LJ, Tucker, Longmore JJ); 29 July 1994.

In criminal cases where appeals were brought by fresh lawyers who did not appear at the trial: (1) there was an obligation upon fresh solicitors and counsel to communicate promptly with the lawyers who appeared at the trial; (2) there was an obligation on trial counsel and solicitors to respond promptly to those enquiries; and (3) of equal importance, those freshly instructed should immediately notify the Registrar of Criminal Appeals if an appeal or application was in prospect so that the court could avoid the unconscionable delays that had occurred in the instant case.

The Bar Council and the Law Society would be notified with a view to their urgent consideration of the court's proposal that formal rules of professional conduct be drawn up to this effect.

James Wood (who did not appear below) (Tyndallwoods & Millichip, Birmingham) for Clarke; Patrick Thomas (who also did not appear below) (Lovsey, Wortley, Marsh & Co, Birmingham) for Jones; David Jones (CPS) for the Crown.

Sentence

R v Williams (Robert A); CA (Cr Div) (Lord Taylor LCJ, Ognall, Gage JJ); 21 July 1994.

Section 1A(6) of the Criminal Justice Act 1982 (as inserted by s 123(4) of the Criminal Justice Act 1988) which dealt with a special case where a judge was faced with an offender already serving a sentence, had no bearing on the powers of a judge to deal with an offender before him on whom to pass sentence in the normal sentencing exercise, namely by imposing custody, if appropriate, either concurrent or consecutive. Further, a judge in such a case was not prevented from imposing a concurrent or consecutive sentence with a sentence of detention in a young offender institution if an offender who had attained 21 years between convictions at different courts for different offences.

Brian Reece (Registrar of Criminal Appeals) for the appellant.

Tax

Melluish (Insp of Taxes) v BMI (No 3) Ltd & related appeals; CA (Dillon, Hoffmann, Saville LJJ); 28 July 1994.

Capital allowances under s 44(1) of the Finance Act 1971 could not be claimed by finance companies in respect of expenditure on plant leased to local authorities and fixed to land owned by the authority. The plant became part of the land and ceased to 'belong' to the finance company which incurred the expenditure. However, where the relevant expenditure was incurred after 11 July 1984, Sch 17 of the Finance Act 1985 applied. That schedule was introduced as a result of the decision in Stokes v Costain Property Investments Ltd (1984) 1 WLR 763 to enable lessors of plant which became fixed to the land to benefit from the capital allowances provisions. (Section 44(1) of the 1971 Act and Sch 17 of the 1984 Act are now in ss 24(1) and 51 of the Capital Allowances Act 1990.)

James Munby QC, Timothy Brennan (Inland Revenue) for the Crown; Graham Aaronson QC, Paul Morgan QC, Stephen Jourdan (Denton Hall) for the taxpayers.