Law Weblog

Miscarriages of justice. The role of the Criminal Cases Review Commission

On 10th December 2003, the conviction of Angel Cannings for killing her children was quashed.  Today the Court of Appeal gave reasons.  The government law officer, the Attorney General has referred the issues raised by their Lordships to the Criminal Cases Review Commission.  There are 258 similar convictions to be reviewed.
News report here

Even more on lawyers fees…

It has been disclosed that Gordon Pollock QC will receive a £3m brief in an action against the Bank of England.  He represents the bank BCCI.  This is thought to be the largest ever fee paid to a lawyer, mind you he is good.
Story from The Times, here

Another example of a conditional fee arrangement and the problems of recovering costs

Arkin v Borchard Lines [2003] Commercial Court
[Conditional fees – access to justice – public policy in conditional fee cases] 
The case was a maritime dispute, where the former shipping company director Arkin brought an £80 million case under a conditional fee agreement. He arranged a complex contingency fee agreement with professional claims funders who paid for experts in return for 25% of any damages.
Mr Arkin claimed loss of profits on the basis that the defendants were in breach of Article 82 of the EC Treaty.

Held: Although Mr Arkin lost the defendants had to pay their own legal costs of £6million.
Defendants who succeed in commercial disputes should not be able to claim back their costs from professional claims funders as it would hinder access to justice.

“The fact that it is the policy of the law to give effect to access to justice permitting an impecunious claimant to sue and so to expose an ultimately successful defendant to shoulder the burden of his own costs…”

First, there was no infringement of Article 81 and Article 82, the ‘irrational’ behaviour of the claimant would have prevented damages being awarded.
Secondly, strong evidence would need to prove predatory price-setting.
Thirdly, lowering the prices only in areas where there was competition was held to be an acceptable response to a new entrant. It was only intended to win back customers.

Claims dismissed
Whole case here

Comment: The court had to decide whether to deter weak claims or accept the widening access to justice. The court decided that access to justice was such an important consideration that it should prevail, which was hard on the defendant who had done nothing wrong.

Example of a conditional fee arrangement

Naomi Campbell the model will take her case for breach of confidence to the House of Lords on 18th and 19th February. She is suing The Daily Mirror, whose costs are expected to be over £1m. The case first started in 2001 and revolved around photographs of Campbell leaving a Narcotics Anonymous meeting after she had already publicly declared that she did not take drugs.
Her appeal which she lost in October 2002 was estimated to have cost her £500,000
Campbell is represented by the firm of solicitors Schillings with whom she is reported to have a conditional fee arrangement for the House of Lords hearing. Schillings will apply for a 100 per cent success fee on its costs if she wins.

R v Miah [2003] CA provocation again, confirming (Morgan) Smith

[Provocation – the two tests to be applied] 
D stabbed another youth to death during an incident involving two groups of students on the first day of term outside Southgate College in 1999. There was punching and kicking also CS gas and a knife used.  One group was Somalian the other Indian.
The judge’s summing up took six days to deliver.  

Held: It is clear from the speech of Lord Hoffmann in Smith (Morgan) [2001] that it is for the jury to decide, on all the facts, whether  1) the defendant lost his self–control and  2) whether that was, objectively, justified.

In the case of Miah there were three characteristics that were, possibly, relevant. They were that he was young; a man and that he was short (only 5 feet or 5 feet 2 inches).

Guilty murder
Comment: The age of D is not stated in the case report.
Whole case here

Cannabis downgraded – but don’t believe what the papers say

Cannabis becomes a Class C drug on 29 Jan 2004, but becomes an “arrestable offence” under the Criminal Justice Act, and the maximum penalty for the possession will go down from 5 years to 2 years imprisonment. 

There will be a “presumption against arrest” for possession and for using small amounts of cannabis. Cannabis will still be confiscated, offender’s details recorded and a warning given. What happens in practice is at the police officer’s discretion so there may be no change from the current enforcement style, and the power of arrest could be still be used on every occasion if the police so desire.

Cannabis is still 100% illegal.

R v Rowland [2003] CA

[Provocation – the second element is a matter for the jury]
D killed his wife with a carving knife following provocation.  He was depressed about their marital failure and her taunting him.

Held:  A “characteristic” of the accused for the second element in provocation is all a matter for the jury.

Referring to the second element as objective is not helpful.

“The reasonable man is  … best left lurking in the statutory undergrowth, lest his emergence should lead the jury down a false trail of reasoning en route to their verdict.”

The reasonable man would not normally be expected to be endowed with the characteristics of the defendant.

The reasonable man test is diminished once it is clear that the application of the objective test is to be regarded exclusively as a matter for the jury.

The Judicial Studies Board specimen direction is an appropriate one … self-induced intoxication is no excuse.

Guilty of manslaughter not murder

DEFRA v Asda (2003) HL – below standard vegetables

[EC Law – direct applicably – mechanism for ever changing Community Law]
D, ASDA were inspected by a DEFRA inspector who found vegetables below standard, contrary to section 14(1)(a) of the Agriculture and Horticulture Act 1964. ASDA successfully argued, at first instance, that this was not an offence known to law.

Held: Asda had contravened EC regulations, where vegatables do not comply with the minimum requirements laid down by Commission Regulation (EEC) 79/88. This regulation is ‘binding in its entirety and directly applicable in all Member States’, see see Antonio Muñoz y Cia SA v Frumar Ltd [2003] ECJ.

Compulsory grading and labelling of horticultural produce existed in this country before the United Kingdom joined the European Economic Community (the 1964 Act).  The 1964 Act was an enabling Act and subsequent Regulations from time to time laid down the standards for different fruit and vegetables.

When the United Kingdom joined the European Economic Community on 1 January 1973 there were already in existence Community regulations governing the grading of certain types of horticultural produce. So this country’s law on this topic had to be brought into line with the existing Community rules, which were “directly applicable”.

Whenever Community grading rules change, the relevant sections of the 1964 Act apply automatically, they become directly applicable in this country, this happens automatically.

The mechanism chosen by Parliament for implementing Community obligations is a matter of legislative choice for Parliament. Courts should not approach the interpretation of implementing statutes or regulations as though there were a presumption that they do not embrace future changes in Community legislation. There is no such presumption.

Case here

R v Sofroniou (2003) CA – Credit Card is “service”

[Obtaining services by deception ‘services’ includes bank account or credit card]
D obtained a credit card from a bank and obtained property using it.

Held: Dishonestly obtaining a bank or building society account or credit card services constituted obtaining services by deception (Theft Act 1978, s 1).

The words “services” and “on the understanding that the benefit has been or will be paid for”, used in the Act, covered obtaining of a credit card. The card itself was not a service or services. The “services” were those which underlay the card holder’s use of the card.

Similarly, opening of a bank account could constitute obtaining services by deception.

The dishonest operation of a bank or building society account over a period and a dishonest use of a credit card over a period constituted obtaining services within the section.

The section did not cover obtaining free services by deception. Banks often made charges on accounts which were in credit and charged interest on accounts which were overdrawn. Similarly with credit card providers, and that is what happened in this case when the account went overdrawn. D was dishonest.

It was possible to have the benefit of a credit card without ever making any identifiable direct payment to the credit card provider.

Guilty
WLR report here

R v Wang (2003) CA – Can a judge direct a jury to convict?

[Juries –  judge’s direction to convict]
D, a Chinese asylum seeker had a curved sword for practicing the martial art Shaolin which was a branch of Buddhism at deserted places. The judge held that this was not a good reason for possessing a bladed instrument and directed the jury to convict because the matters raised did not amount to a defence. 

Held: The judge was justified in directing the jury to convict. There were a numebr of reasons including the fact that there was no religious requirement. The HRA is not affected.

Guilty
Comment: The court refused the defendant leave to appeal to the House of Lords but certified that the following point of law of general public importance was involved in its decision: ‘In what circumstances, if any, is a judge entitled to direct a verdict of guilty?’. This is the second time this month that this issue has been raised, see R v Kelleher (this page).