Commissioner of Police v Davis and another

[1993] 4 All ER 476

Categories:        ADMINISTRATION OF JUSTICE; Legal Aid and Advice: COMMONWEALTH; Commonwealth countries        

Court:        PRIVY COUNCIL        

Lord(s):        LORD GOFF OF CHIEVELEY, LORD JAUNCEY OF TULLICHETTLE, LORD LOWRY, LORD MUSTILL AND ZACCA CJ        

Hearing Date(s):        19, 20 MAY, 4 OCTOBER 1993        

Bahamas – Constitution – Right to trial by jury – Summary trial of drug offences – Increase of penalties for summary conviction on drug offences – Magistrates’ courts having power to impose $100,000 fine and five years’ imprisonment on summary conviction – Magistrates’ courts having power to summarily convict defendant and commit him to Supreme Court for sentence if amount of drugs over specified limit – Penalty if amount of drugs over specified limit increased to maximum of life imprisonment – Whether provisions for summary conviction and committal to Supreme Court for sentence unconstitutional as denying right to trial by jury – Whether unconstitutional provisions could be severed – Whether imposition of $100,000 fine and five years’ imprisonment by court of summary jurisdiction unconstitutional – Whether magistrates’ courts in Bahamas courts of law – Constitution of the Commonwealth of The Bahamas, art 20(2)(g) – Dangerous Drugs Act (Bahamas), s 22(2)(8)–(11).

The respondents were apprehended in the Bahamas when they were caught attempting to smuggle 389lbs of cocaine. They were charged, inter alia, with possession of dangerous drugs with intent to supply, contrary to s 22(1) and (2)(b)a of the Dangerous Drugs Act. Under s 22(2)(b) the maximum penalty on summary conviction for possession with intent to supply was a fine of up to $100,000 and a term of imprisonment of between one and five years for a first conviction and a fine of up to $200,000 and a term of imprisonment of between three and seven years for a second or subsequent conviction. However, by s 22(8) to (11)b, which were added by the Dangerous Drugs (Amendment) Act 1988, the maximum penalty on summary conviction for possession with intent to supply was increased to life imprisonment and a fine if the amount of the drugs involved was over certain specified limits, the limit in the case of cocaine being 2lb. Section 22(9) to (11) provided for a person who was summarily convicted of possession with intent to supply drugs over the specified limits to be committed by the magistrate to the Supreme Court for sentence. The respondents were tried and convicted of all three offences by a magistrate who committed them to the Supreme Court for sentence. The respondents appealed to the Supreme Court, contending, inter alia, that s 22(8) to (11) were unconstitutional and void because they were contrary to art 20(2)(g)c of the

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Constitution, which provided that every person who was charged with a criminal offence ‘shall, when charged on information in the Supreme Court, have the right to trial by jury’ and therefore the procedure by which they had been summarily convicted and then committed to the Supreme Court for sentence had deprived them of their constitutional right to trial by jury. The judge upheld that submission in respect of s 22(9) to (11) and also in respect of s 22(8) in so far as it related to summary convictions but further held that the invalid subsections could be severed from the remainder of s 22 and that accordingly the magistrate had jurisdiction to impose a sentence of five years’ imprisonment under s 22(2)(b) in respect of possession with intent to supply. The judge ordered a retrial. The respondents and the commissioner of police both appealed against the judge’s decision. On appeal the Court of Appeal of the Bahamas held that s 22(8) as well as s 22(9) to (11) were void as being contrary to art 20(2)(g) of the Constitution but that all four subsections could be severed from s 22. The commissioner of police and the respondents both appealed to the Privy Council, where the issues were (i) whether s 22(8) to (11) were unconstitutional and void, (ii) if so, whether those subsections could be severed from s 22, (iii) if so, whether the imposition of a penalty of a $100,000 fine and five years’ imprisonment by a court of summary jurisdiction was unconstitutional and void, (iv) whether magistrates’ courts in the Bahamas were courts of law for the purposes of the Constitution and (v) if so, whether they could lawfully exercise jurisdiction which was reserved by the Constitution to the Supreme Court.

Held – (1) Where the penalties which magistrates’ courts in the Bahamas were empowered to impose in the case of offences within their jurisdiction were so increased as to confer on magistrates’ courts jurisdiction which was appropriate only to the Supreme Court, that was in effect a transfer of jurisdiction and was not only unconstitutional in itself but was also unconstitutional on the ground that under the Bahamian Constitution it was a characteristic of offences charged on information in the Supreme Court that the accused was entitled to be tried by jury, and therefore the vesting in magistrates’ courts of a jurisdiction to try offences which under the Constitution were properly triable only in the Supreme Court, would inevitably deprive the accused of his constitutional right to jury trial. Accordingly, s 22(8) of the Dangerous Drugs Act, in so far as in the cases to which it applied it enhanced the maximum sentence capable of being imposed on summary conviction under s 22(2)(b) to life imprisonment was prima facie unconstitutional and void. Moreover, that unconstitutionality was not saved by the provisions of s 22(9) to (11) providing for a person who had been summarily convicted to be committed to the Supreme Court for sentence, since in such a case an accused person still had no opportunity to elect to be tried by a jury (see p 485 e to p 486 d j to p 487 c, post); Hinds v R [1976] 1 All ER 353 applied.

(2) However, applying the test of substantial severability, namely that the court could modify the text of legislation in order to achieve severance only when it was satisfied that it was effecting no change in the substantial purpose and effect of the impugned provision, s 22(8) was only void in so far as it related to summary convictions, since the application of the subsection to convictions on information was not inconsistent with the Constitution and reading the subsection as applicable only to convictions on information effected no change in the substantial purpose and effect of the subsection. Moreover, the fact that a magistrates’ court had power to impose a substantial financial penalty, such

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as the fine of $100,000 provided for in s 22(2)(b) in respect of the possession of dangerous drugs with intent to supply, did not give rise to any constitutional infringement since the power to impose very substantial fines could be conferred on courts of summary jurisdiction. With regard to the sentence of up to five years’ imprisonment which could be imposed for possession of dangerous drugs with intent to supply, the Board would not depart from the conclusion reached by the Court of Appeal that such a sentence fell within the permissible limit of magistrates’ courts’ sentencing jurisdiction since the permissible limit of sentences was essentially one of degree which was peculiarly within the knowledge and experience of the judges and legislators of the Bahamas (see p 487 g to j, p 488 c to e h j and p 489 d to f, post); DPP v Hutchinson [1990] 2 All ER 836 applied.

(3) Although a magistrates’ court in the Bahamas could not exert the jurisdiction characteristic of a Supreme Court they were courts of law and were lawfully entitled, consistently with the Constitution, to exercise the jurisdiction of inferior courts (see p 490 b c, post).

(4) It followed that s 22(9) to (11) and s 22(8) in so far as that subsection related to summary convictions were unconstitutional and void as purporting to vest in inferior courts part of the jurisdiction which was reserved for the Supreme Court as a significant part of the jurisdiction which was characteristic of such a court. The appeal and cross-appeal would therefore both be dismissed (see p 490 f g, post).

Notes

For the judicature of the Bahamas, see 6 Halsbury’s Laws (4th edn reissue) para 885.

For severance of partly invalid legislation, see 1(1) Halsbury’s Laws (4th edn reissue) para 25, and for a case on the subject, see 45 Digest (Reissue) 560, 5942.

Cases referred to in judgment

DPP v Hutchinson [1990] 2 All ER 836, [1990] 2 AC 783, [1990] 3 WLR 196, HL.

Hinds v R [1976] 1 All ER 353, [1977] AC 195, [1976] 2 WLR 366, PC.

Appeal

The Commissioner of Police for the Bahamas appealed with special leave granted on 15 July 1992 against the decision of the Court of Appeal of the Bahamas (Henry P, Melville and Campbell JJA) given on 18 June 1992 dismissing the commissioner’s appeal and allowing in part the appeal of the respondents, Skip Patrick Davis and Barry Franklyn, from the decision of Hall J on 22 May 1992 whereby he set aside the convictions of the respondents by Gladys Manuel, a stipendiary and circuit magistrate sitting at New Providence on 25 February 1991, on charges of (1) possession of dangerous drugs (cocaine) contrary to s 28(5) and (2)(b) of the Dangerous Drugs Act, (2) possession of dangerous drugs (cocaine) with intent to supply, contrary to s 22(1) and (2)(b), (3) importation of dangerous drugs (cocaine) contrary to ss 15(5) and 28(2)(b), and ordered a retrial. The respondents appealed against the Court of Appeal’s decision to uphold the order for a retrial. The facts are set out in the decision of the Board.

Mark Strachan QC and Bernard Turner (acting Senior Crown Counsel of the Bahamas) (instructed by Charles Russell) for the commissioner.

Frederick Smith and Maurice Glinton (both of the Bahamian Bar) (instructed by Simons Muirhead & Burton) for the respondents.

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4 October 1993. The following judgment of the Board was delivered.

LORD GOFF OF CHIEVELEY. This appeal is concerned with two questions arising under the Constitution of the Bahamas. The first question is whether certain provisions of the Dangerous Drugs Act, viz sub-ss (8) to (11) of s 22 which were added to the Dangerous Drugs Act by the Dangerous Drugs (Amendment) Act 1988, are inconsistent with the Constitution and are therefore void. The second question, which was raised for the first time in argument before the Court of Appeal, relates to the legal status of magistrates’ courts in the Bahamas.

The matter has arisen as follows. On 24 February 1991 a Cessna aircraft crashed into the sea not far from the airport at West End, Grand Bahama. The crash marked the end of an air chase involving drug enforcement agents of the Bahamas and the United States. The two respondents, Skip Patrick Davis and Barry Franklyn, escaped from the aircraft and boarded a life raft. They  were apprehended whilst still on the life raft near the position where the aircraft crashed. When the aircraft crashed a large number of taped packages spilled into the  sea from a bottom compartment of the aircraft. 149 of the packages were recovered. They were found to contain a total of 389lbs of cocaine.

The respondents were charged with three offences contrary to the Dangerous Drugs Act, viz: (1) possession of dangerous drugs (cocaine) contrary to s 28(5) and (2)(b); (2) possession of dangerous drugs (cocaine) with intent to supply, contrary to s 22(1) and (2)(b); (3) importation of dangerous drugs (cocaine) contrary to ss 15(5) and 28(2)(b).

Sections 28(5) and 15(5) provide respectively for the offences of simple possession and importation of dangerous drugs. Section 28(2) provides for the penalty applicable in the case of offences under the Act for which special provision is not otherwise made. Section 22(1) provides for the offence of possession of dangerous drugs with intent to supply. Section 22(2) provides for the penalty applicable in respect of such an offence, s 22(2)(b) so providing in the case of summary conviction. The sentences applicable in respect of possession with intent to supply are heavier than those applicable in the case of simple possession or importation under s 28(2)(b). In the latter case the maximum penalty applicable on summary conviction is a fine of $5,000 or a sentence of five years’ imprisonment or both. Under s 22(2)(b) the penalty applicable in the case of summary conviction is (1) on first conviction, a fine of not more than $100,000 and a term of imprisonment of not less than one year but not more than five years, and (2) on a second or subsequent conviction, a fine of not more than $200,000 and a term of imprisonment of not less than three years but not more than seven years.

Furthermore, by virtue of sub-ss (8) to (11) of s 22, added in 1988, special provision was made in the case of amounts of dangerous drugs in excess of certain specified quantities. For cocaine, the amount so specified was 2 lb, which was far exceeded by the amount involved in the present case (389 lb). Since these four subsections are at the heart of the present case, their Lordships think it right to set out their terms in full:

‘(8) Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case in which a person is convicted of having committed an offence under subsection (1) and the quantity of dangerous drugs to which the charge relates is (a) in the case of Indian hemp, in excess of ten pounds; (b) in the case of cocaine, in excess of two

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pounds; or (c) in the case of opium morphine and its salts including diacetylmorphine (commonly known as heroin), in excess of twenty grams, the provisions of subsections (2) and (4) shall have effect as if for the respective maximum terms of imprisonment liable to be imposed thereunder there were substituted a term of life imprisonment.

(9) In any case in which a Magistrate has convicted a person of having committed an offence under subsection (1) or (4) and the person so convicted is liable to imprisonment for life by virtue of subsection (8), the Magistrate shall commit the convicted person in custody for sentence to the Supreme Court either at any sessions then in progress or at the next convenient sessions.

(10) In any such case as is referred to in subsection (9), the Supreme Court may proceed to sentence the convicted person as if the person so committed had pleaded guilty before the Supreme Court to that offence or had been found guilty by verdict of a jury: Provided that the Supreme Court shall not sentence any person in any case until the time limited by section 230 of the Criminal Procedure Code Act, 1968 for an appeal against conviction has expired or, in the event of a Notice of Appeal being served within that time, until that appeal has been finally determined.

(11) In a case referred to in subsection (9) or (10), it shall not be necessary for any information to be filed against the person so committed for sentence and the convicted person shall be sentenced for the offence in respect of which he has been convicted as aforesaid.’

It follows therefore that, under sub-s (8), the maximum term for which the respondents were liable to be sentenced for the offence of possession with intent to supply on summary conviction was life imprisonment instead of five years on first conviction or seven years on a second or subsequent conviction; though in such event the magistrate had to commit the convicted person to the Supreme Court for sentence under sub-s (9), and the Supreme Court would then proceed to sentence him under sub-s (10).

The respondents were tried before a magistrate, Ms G Manuel. Before the magistrate the principal question was whether the aircraft crashed, and the respondents were apprehended, within the Bahamian jurisdiction. The magistrate had little difficulty in concluding on the evidence before her that they were. On 4 September 1991 she found all three charges proved against both respondents, and so committed the respondents to the Supreme Court for sentence pursuant to sub-ss (8) and (9) of s 22.

The respondents then appealed to the Supreme Court on a number of grounds, which included (1) that the magistrate had wrongly failed to subpoena a witness whose presence had been requested by them, and (2) that the respondents had been deprived of their constitutional right to trial by jury in respect of the three offences with which they had been charged, and that the provisions of s 22 of the Dangerous Drugs Act under which they had been convicted and remanded in custody for sentence were unconstitutional and void. In support of the second of these grounds, the respondents relied in particular on art 20(2)(g) of the Constitution, which provides that every person who is charged with a criminal offence ‘shall, when charged on information in the Supreme Court, have the right to trial by jury’; and they contended that the increase in the sentence applicable in the case of summary conviction of the offence of possession of dangerous drugs with intent to supply had resulted in an indirect denial of their right to trial by jury.

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The respondents’ appeal was heard by Hall J. In a judgment delivered on 22 May 1992 he first concluded that the magistrate had erred in failing to subpoena the witness whose presence had been requested by the respondents. In ordinary circumstances he would, for this reason, have simply ordered a retrial. However, before making any such order, he considered next the constitutional question raised by the respondents, since that question went to the jurisdiction of the magistrate. He concluded that sub-ss (9), (10) and (11) of s 22 must be rejected as conflicting with the Constitution; but that these provisions could be severed from the remainder of the section, as could sub-s (8) in so far as it applied to summary convictions. The effect, in his judgment, was that the magistrate’s jurisdiction to impose a sentence of five years’ imprisonment under s 22(2)(b), in respect of possession with intent to supply, applied in respect of that offence unaffected by the impugned provisions, as did the general provision to impose the same sentence under s 28(2)(b). He also concluded that a provision for sentence on summary conviction of up to five years’ imprisonment was not unconstitutional. On this basis, he remitted the case for retrial by a different magistrate, and directed that, should the respondents be again convicted, the magistrate should proceed to pass sentence under s 22(2)(b) and s 28(2)(b).

The appellant commissioner and the respondents both appealed against the decision of Hall J, the commissioner appealing against his decision that sub-s (8) in part and sub-ss (9) to (11) of s 22 were in conflict with the Constitution, and the respondents against his decision to order a retrial. In addition, the respondents raised for the first time in argument before the Court of Appeal a question whether the Bahamian Constitution recognises the magistracy as part of the judiciary. The Court of Appeal rejected the latter argument, but generally affirmed the decision of Hall J, with two exceptions. First, they held that sub-s (8) was void in toto as well as sub-ss (9) to (11); but they considered that all four subsections could be severed from the remainder of s 22. Second, although satisfied that the sentence of five years’ imprisonment was not unconstitutional, they declined to uphold Hall J’s opinion that a sentence of five years’ imprisonment marked the outer limit of the lawful sentencing power of a magistrate under the Dangerous Drugs Act. Henry P (with whose judgment Melville JA agreed) and Campbell JA (who delivered a separate judgment) declined to determine for the future what the maximum permissible term of imprisonment should be on summary conviction.

The commissioner and the respondents now appeal to the Privy Council, broadly on the same grounds on which they appealed to the Court of Appeal.

In order to consider the principal question which arises in this case, it is necessary to set out the relevant provisions of the Constitution of the Bahamas of 1973. In Ch III there are found the provisions for the ‘Protection of Fundamental Rights and Freedoms of the Individual’. For present purposes the most relevant is art 20, which secures the protection of the law. Article 20(1) provides as follows:

‘If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.’

Article 20(2) makes provision for the protection of persons charged with a criminal offence. In particular, the article provides:

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‘Every person who is charged with a criminal offence ... (g) shall, when charged on information in the Supreme Court, have the right to trial by jury ...’

These were the two principal provisions invoked by the respondents in the present case.

Chapter V of the Constitution is concerned with Parliament. In particular, art 52(1) contains the general provision:

‘Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of The Bahamas.’

Chapter VII is concerned with the judicature. The chapter is divided into three parts, concerned respectively with the Supreme Court, the Court of Appeal, and appeals to the Court of Appeal and Her Majesty in Council. In particular, s 93(1) (the first provision in Pt I) provides that—

‘There shall be a Supreme Court for The Bahamas which shall have such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.’

There is no direct reference to the magistracy, nor to the magistrates’ courts, in the Constitution, though there are brief indirect references in art 117 (concerned with the appointment of judicial and legal officers), and in s 13(5) of the Bahamas Independence Order 1973, which specifies the public officers to which s 117 applies, including the Chief Magistrate and stipendiary and circuit magistrates. It is plain however that the magistrates and the magistrates’ courts are not treated as forming part of the judicature as legislated for in Ch VII of the Constitution. Even so, the definition of ‘court’ in art 31(1), which lays down definitions for the purpose of Ch III, including of course art 20, is very wide, viz, subject to certain immaterial exceptions, ‘Any court of law having jurisdiction in The Bahamas’. Magistrates’ courts are in fact the subject of legislation of long standing, to be found in the Magistrates Act.

At this stage their Lordships consider it desirable that they should turn to the decision of the Privy Council in Hinds v R [1976] 1 All ER 353, [1977] AC 195, since that case provided the basis for much of the attack launched by the respondents on the relevant provisions of the Dangerous Drugs Act in the present case. In Hinds v R the question related to the constitutionality of the Gun Court established by the Gun Court Act 1974 in Jamaica, a country whose Constitution does not contain any entrenched right to jury trial such as that contained in art 20(2)(g) of the Bahamian Constitution. The Gun Court was established to try firearms offences, and the Act provided for three divisions of the court—the Circuit Court Division, in which a Supreme Court judge constituted the court; the Resident Magistrate’s Division, in which a resident magistrate constituted the court; and the Full Court Division, constituted by three resident magistrates. The Privy Council rejected the argument that the first two divisions were unconstitutional, because the jurisdiction of each was no greater than that of a Supreme Court judge or a resident magistrate respectively (though in fact it extended over a wider geographical area). But the argument that the Full Court Division was unconstitutional was upheld. This was because the jurisdiction of a Full Court Division extended to include (apart from capital offences) any firearms offence or other offence committed by a person detained for a firearms offence, a jurisdiction which, at the time when the Constitution came into force, was exercisable only by a Supreme Court

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judge in the Circuit Court. The reasoning which led the majority of the Board (Lord Diplock, Lord Simon of Glaisdale and Lord Edmund-Davies) to reach this conclusion was as follows.

Chapter VII of the Constitution of Jamaica, concerned with the judicature, drew a distinction between the higher judiciary, consisting of judges of the Supreme Court and of the Court of Appeal, and the lower judiciary, which included resident magistrates; and the distinction between the higher and the lower judiciary was that the former was given a greater degree of security of tenure than the latter. Furthermore, although there was nothing in the Constitution to prohibit Parliament from establishing a new court to exercise part of the jurisdiction that was being exercised by members of the higher judiciary or the members of the lower judiciary at the time when the Constitution came into force, nevertheless it was the manifest intention of the Constitution that—

‘any person appointed to be a member of such a court should be appointed in the same manner and entitled to the same security of tenure as the holder of the judicial office named in Chapter VII of the Constitution which entitled him to exercise the corresponding jurisdiction at the time when the Constitution came into force.’ (See [1976] 1 All ER 353 at 365, [1977] AC 195 at 219.)

Furthermore, s 97(1) of the Constitution, which provided for the continued existence of a Supreme Court, must be read subject to an implication to the effect that the Supreme Court would exercise in Jamaica the kind of jurisdiction characteristic of a Supreme Court, including unlimited original jurisdiction in all serious criminal offences. From this, the following conclusions were drawn ([1976] 1 All ER 353 at 367–368, [1977] AC 195 at 221–223) :

‘Their Lordships therefore are unable to accept that the words in s 97(1), on which the Attorney-General relies, entitle Parliament by an ordinary law to vest in a new court composed of members of the lower judiciary a jurisdiction that forms a significant part of the unlimited civil, criminal or supervisory jurisdiction that is characteristic of a “Supreme Court” and was exercised by the Supreme Court of Jamaica at the time when the Constitution came into force, at any rate where such vesting is accompanied by ancillary provisions, such as those contained in s 6(1) of the Gun Court Act 1974, which would have the consequence that all cases falling within the jurisdiction of the new court would in practice be heard and determined by it instead of by a court composed of judges of the Supreme Court. As with so many questions arising under constitutions on the Westminster model, the question whether the jurisdiction vested in the new court is wide enough to constitute so significant a part of the jurisdiction that is characteristic of a Supreme Court as to fall within the constitutional prohibition is one of degree. The instant case is concerned only with criminal jurisdiction. It is not incompatible with the criminal jurisdiction of a “Supreme Court”, as this expression would have been understood by the makers of the Constitution in 1962, that jurisdiction to try summarily specific minor offences which attracted only minor penalties should be conferred on inferior criminal courts to the exclusion of the criminal as distinct from the supervisory jurisdiction of a Supreme Court. Nor is it incompatible that a jurisdiction concurrent with that of a Supreme Court should be conferred on inferior criminal courts to try a wide variety

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of offences if in the particular case the circumstances in which the offence was committed makes it one that does not call for a severer punishment than the maximum that the inferior court is empowered to inflict. In this class of offences the answer to the question whether the concurrent jurisdiction conferred upon the inferior court is appropriate only to a “Supreme Court” depends on the maximum punishment that the inferior court is empowered to inflict. At the time of the coming into force of the Constitution the maximum sentence that a resident magistrate was empowered to inflict for any of the numerous offences which he had jurisdiction to try was one year’s imprisonment and a fine of $100. It is not necessary for the purposes of the instant appeals to consider to what extent this maximum might be raised, either generally or in respect of particular offences, without trespassing on the jurisdiction reserved by the Constitution to judges of the Supreme Court. The limit has in fact been raised to two years in respect of some offences including those under s 20 of the Firearms Act 1967. Their Lordships would not hold this to be unconstitutional; but to remove all limits in respect of all criminal offences, however serious, other than murder and treason, would in their Lordships’ view destroy the protection for the individual citizen of Jamaica intended to be preserved to him by the establishment of a Supreme Court composed of judges whose independence from political pressure by the Parliament or the Executive was more firmly guaranteed than that of the inferior judiciary. It is this that, in respect of a particular category of offenders, is sought to be achieved by the provisions of the Gun Court Act 1974 relating to the jurisdiction and powers of a Full Court Division of the Gun Court. As has been pointed out, the practical consequence of these provisions as they stand would be to give to a court composed of members of the lower judiciary, jurisdiction to try and to punish by penalties, extending in the case of some offences to imprisonment for life, all criminal offences however grave, apart from murder or treason, committed by any person who has also committed an offence under section 20 of the Firearms Act 1967.’

The Full Court Division had never in fact sat, and the appeals before the Board were not therefore directly concerned with that division. Nevertheless, as the majority made clear, it was necessary as part of the reasoning of the Board to consider the position of the Full Court Division, especially as that had an impact upon the severability of the effective provisions of the Act from the remainder.

Now it is plain that the present case can be differentiated from the case of Hinds v R. First of all, there is no question of the Bahamian Dangerous Drugs Act having led to the exercise of a jurisdiction by the lower judiciary of a character which had formerly been exercised by judges of the Supreme Court. On the contrary, jurisdiction over drug offences in the Bahamas has historically formed part of the summary jurisdiction exercised by magistrates. Second, since the right to trial by jury is not entrenched in the Jamaican Constitution, the decision in Hinds v R was not concerned with any such entrenched right. Even so, the fact that in that case the Board drew a distinction between serious criminal offences, which formed part of the characteristic jurisdiction of a Supreme Court, and lesser offences which did not, and furthermore that it drew that distinction with reference to the maximum punishment which the inferior court was entitled to inflict, provided a basis upon which the respondents in the

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courts below were able to build in submitting that the summary jurisdiction exercisable by the magistrates’ courts under the Dangerous Drugs Act had become so enhanced over the years that finally it had become an indirect encroachment upon the entrenched right to trial by jury available to those charged on information in the Supreme Court.

Their Lordships approach the matter as follows. Let it be supposed that the jurisdiction to try offences under s 22(8) in respect of substantial quantities of certain specified drugs, together with the power to impose a sentence of imprisonment for life, had previously been vested in the Supreme Court. Let it then be supposed that, by subsequent legislation, jurisdiction over such offences, together with the power to impose a sentence of life imprisonment, had been transferred from the Supreme Court to the magistrates’ courts. In such circumstances, on the assumption that there was no entrenched right to jury trial where the accused is charged on information in the Supreme Court, the question would have arisen whether, on the principle stated in Hinds v R, the jurisdiction so transferred constituted a significant part of the jurisdiction that is characteristic of a Supreme Court, having regard to the maximum punishment that the inferior court was empowered to inflict. Before the Court of Appeal, it was submitted on behalf of the appellant that jurisdiction in relation to drug offences cannot be said to form a significant part of a criminal jurisdiction exercised by the Supreme Court. To that submission, Henry P (with whom Melville JA agreed) responded as follows:

‘No doubt this is so. But to adopt that approach would, it seems to me, be to open the door to permit piecemeal what cannot in principle be done as a whole.’

Their Lordships would go further. As they read the judgment of Lord Diplock in Hinds v R [1976] 1 All ER 353 at 367, [1977] AC 195 at 219 at 222, it is to the effect that, where the jurisdiction over the offences in question is exclusively vested in an inferior court, the question whether the jurisdiction so vested is appropriate only to a Supreme Court depends both on the nature of the offence and on the severity of the punishment which can be imposed; whereas where a concurrent jurisdiction is vested in the inferior court, the question depends upon the maximum punishment. It follows that, on the hypothesis that there was no entrenched right to trial by jury in the Constitution of the Bahamas, and that the relevant jurisdiction had then been transferred from the Supreme Court to the magistrates’ courts, the question under consideration would be whether the offences could be characterised as minor offences and whether the punishment capable of being imposed could be characterised as a minor penalty. If however the jurisdiction so transferred was concurrent with the jurisdiction of the Supreme Court, the question would relate only to the maximum punishment which the inferior court was empowered to inflict. On this approach, their Lordships have no doubt that a maximum sentence of imprisonment for life would inevitably render such transfer of jurisdiction unconstitutional on the principle in Hinds v R. In such a case, the transfer of the jurisdiction would be unconstitutional per se, though an additional effect would be that, since under the Bahamian Constitution it is a characteristic of offences charged on information in the Supreme Court that the accused is entitled to be tried by jury, by vesting in the magistrates’ courts a jurisdiction to try offences which, under the Constitution, are properly triable only in the Supreme Court, the accused would inevitably be deprived of his constitutional right to jury trial.

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However, in the opinion of their Lordships, the same infringement of constitutional rights may occur when, instead of the relevant jurisdiction being transferred from the Supreme Court to the magistrates’ courts, the penalties which the magistrates’ courts are empowered to impose in the case of offences within their jurisdiction are so increased as to confer upon the magistrates’ courts jurisdiction which is appropriate only to a Supreme Court. In such a case the principle in Hinds v R is as much infringed as in a case where the relevant jurisdiction is transferred from the Supreme Court to the magistrates’ courts. Here again, in the opinion of their Lordships, an enhancement of the magistrates’ jurisdiction in respect of penalties for possession of dangerous drugs with intent to supply so as to empower the magistrates’ courts to impose a sentence of life imprisonment would undoubtedly be unconstitutional, and would have the effect also (in the case of the Constitution of the Bahamas) that accused persons would lose the benefit of the entrenched right to jury trial under art 20(2)(g). Prima facie, therefore, s 22(8) of the Dangerous Drugs Act, in so far as, in the cases to which it applies, it enhances the maximum sentence capable of being imposed on summary conviction under s 22(2)(b) and s 22(4)(b) to life imprisonment, is unconstitutional and void.

However, as appears in s 22(9) and (10), the Bahamian legislature has sought to escape from that consequence by providing that, where there is a summary conviction in a case to which s 22(8) applies, the magistrate shall commit the convicted person in custody for sentence in the Supreme Court, in which event the Supreme Court may proceed to sentence the convicted person as set out in s 22(8). However, like Hall J and Campbell JA, their Lordships do not consider that these provisions can have the intended effect of preventing a constitutional infringement. Section 28(3) of the Dangerous Drugs Act provides:

‘… no person shall in The Bahamas be proceeded against by information for an offence under this Act unless the proceedings are instituted by, or with the consent of the Attorney-General.’

It follows that an accused person has, in proceedings brought against him under the Act, no opportunity to elect to be tried by a jury. Such a procedure is to be contrasted with the customary procedure in respect of offences triable either way, ie either on indictment or summarily, under which the accused is given the option to elect to be tried by a jury, as under s 210 of the Criminal Procedure Code Act of the Bahamas. In England, the procedure in respect of offences triable either way is set out in ss 17 et seq of the Magistrates’ Courts Act 1980; and s 20 sets out the procedure applicable where summary trial appears more suitable, viz that the accused person should be given the opportunity, if he so wishes, to be tried by a jury, but that he is to be informed that, if he is tried summarily and convicted, he may nevertheless be committed for sentence to the Crown Court under s 38 of the Act if the convicting court is of the opinion that a greater punishment is called for than it has power to inflict. It is plain that, if a person accused of an offence is given the opportunity to elect to be tried by a jury, there can be no question of the summary jurisdiction over such an offence constituting a constitutional infringement on the principle in Hinds v R nor can there be any question therefore of the accused being deprived of his constitutional right to trial by a jury under art 20(2) (g) of the Constitution of the Bahamas. But the procedure for remission for sentence to the Supreme Court under s 22(9) of the Dangerous Drugs Act, which is a far cry from, for example, the procedure under s 38 of the English Magistrates’ Courts Act 1980, cannot prevent the constitutional infringement involved in the summary

Page 487 of [1993] 4 All ER 476

procedure for trial of offences under s 22(8). The fact remains that the accused has no opportunity to elect for trial in the Supreme Court on information, in which he will be able to exercise his constitutional right to be tried by a jury. On the contrary, he may be compelled to submit to trial before a magistrate for an offence for which, if convicted by that court, he is liable to be sentenced to life imprisonment, albeit that such sentence may only be imposed on remission to the Supreme Court.

For these reasons, their Lordships are of the opinion that, on the principle in Hinds v R, sub-ss (9), (10) and (11) of s 22 are unconstitutional and void. Hall J thought that it was possible to preserve so much of sub-s (8) as related to conviction on information, on the basis that there was no constitutional impediment to a simple increase of the maximum penalty on such conviction to life imprisonment. The Court of Appeal, however, took the view that, having regard to the terms in which the subsection is expressed, it was not possible to achieve such a severance.

The problem of severance where a law is held to be in part inconsistent with a higher law was considered by the House of Lords in DPP v Hutchinson [1990] 2 All ER 836, [1990] 2 AC 783. It was there considered that, in cases where such a problem of severance arises—

‘a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases ... have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the lawmaker’s power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope.’ (See [1990] 2 All ER 836 at 845, [1990] 2 AC 783 at 811 per Lord Bridge of Harwich.)

It follows that the test of substantial severability must now be applied; and this test requires that, when the court must modify the text in order to achieve severance, this can only be done ‘when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision’ (see [1990] 2 All ER 836 at 845, [1990] 2 AC 783 at 811 at 811).

With this principle in mind, their Lordships turn to sub-s (8). The subsection, as drawn, relates both to convictions on information and summary convictions; and it is its application to summary convictions which has resulted in constitutional infringement. However, its application to convictions on information is not inconsistent with the Constitution; and, in the opinion of their Lordships, although the preservation of the subsection so restricted could not be achieved on a test of textual severability, nevertheless it can and should be achieved on the now applicable test of substantial severability, since reading the subsection as applicable only to convictions on information would plainly effect no change in the substantial purpose and effect of the subsection.

Before their Lordships, however, it was strongly argued by the respondents that sub-ss (8) to (11) of s 22 were not the only provisions of the Dangerous Drugs Act which fell foul of the Constitution on this ground. They drew attention to the fact that, under s 22(2)(b) of the Dangerous Drugs Act, the penalty which could be inflicted on summary conviction of possession of dangerous drugs with intent to supply was, on a first conviction, a fine not exceeding $100,000 and a sentence of not less than one year and not more than five years’ imprisonment. Furthermore, even in the case of the offences of simple possession or importation of dangerous drugs, the penalty which can be

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imposed on summary conviction has been, since the amendment in 1980 of s 28(2), the provision concerned with penalties for offences for which no other penalty is provided, a fine of up to $5,000 and/or imprisonment for a term of up to five years. It was the submission of the respondents that jurisdiction in a court of summary jurisdiction to impose for such an offence a sentence of five years’ imprisonment is contrary to the principle in Hinds v R; and indeed it was their submission that the only sentence which could lawfully be imposed was that applicable in the case of summary conviction when the Bahamian Constitution of 1963 came into force, viz a fine of up to £250 and/or a sentence of imprisonment not exceeding twelve months.

The respondents also relied, for this purpose, on the scale of a maximum fine which can be imposed under s 22(2)(b), viz $100,000, as offending against the principle in Hinds v R. Their Lordships are unable to accept this argument, which does not appear to have been raised in either of the courts below. There is no doubt that the power to impose very substantial fines may be conferred on courts of summary jurisdiction. An example is to be found in s 170 of the United Kingdom Customs and Excise Management Act 1979, under which an accused found guilty of the offence of fraudulent evasion of duty is liable, on summary conviction, to a penalty of three times the value of the goods involved, which can of course be a very substantial penalty indeed. Their Lordships do not consider that power in a court of summary jurisdiction to impose a substantial financial penalty as is provided for in s 22(2)(b) in respect of the commission of such an offence as possession of dangerous drugs with intent to supply gives rise to any constitutional infringement.

The power to impose a sentence of up to five years’ imprisonment is, however, a different matter. In the Supreme Court Hall J considered that power to impose such a sentence constituted the outer limit of the permissible jurisdiction of magistrates’ courts in the Bahamas. That conclusion would presumably have led to outlawing the seven year sentence which can be imposed on a second or subsequent conviction, which their Lordships understand is not material in the present case. The Court of Appeal, however, disagreed that a sentence of five years constituted the outer limit. They were satisfied that a power to impose a sentence of five years’ imprisonment fell within the permissible limit, but were not prepared to determine for the future what the maximum permissible term of imprisonment would be on summary conviction.

Their Lordships have come to the conclusion that they should not interfere with the conclusion so reached by the Court of Appeal. Their reasons for reaching this conclusion are as follows. First, like the courts below, they reject the submission, which has been advanced on behalf of the respondents, that there is a constitutional proscription against increasing penalties. Second, like the courts below, they take into account the fact that historically the penalties on summary conviction for drugs offences in the Bahamas have been higher than those generally applicable in the case of summary conviction for other offences. Thus, under the first Act concerned with drugs offences in the Bahamas, the Opium Act 1913, the maximum sentence of imprisonment which could be imposed on summary conviction of other offences under the Act was double that generally applicable on summary conviction, viz twelve months as opposed to six months. This appears to reflect a view held in the Bahamas, long before the coming into force of the Constitution, that drugs offences fall into a special category calling for a higher level of penalty on summary conviction. Third, it appears from the legislative history that there was in the years before

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1988 a gradual increase in the applicable penalties for drugs offences. This took place in 1971, 1980 and again in 1986. This policy no doubt reflected the fact that, as is plain from the judgments in the courts below, a serious problem has arisen in the Bahamas with regard to trafficking in drugs, no doubt in part due to the geographical position of the Bahama Islands not far from the coast of the United States as is demonstrated by the fact that, in the present case, the apprehension of the respondents and the recovery of the very large consignment of cocaine from their aircraft followed upon an air chase involving officers from the United States Drug Enforcement Agency. Even so, until the change introduced in 1988 by the addition of sub-ss (8) to (11) to s 22, a clear distinction was maintained between summary conviction and conviction on information, with a substantially greater penalty applicable in the latter case.

It is against this background that their Lordships consider the conclusion reached on this point by the judges in the courts below. In considering that conclusion, their Lordships bear well in mind that the question at issue is essentially one of degree, and that questions of infringement of the Constitution are reserved to the judges of the Supreme Court of the Bahamas (see Hinds v R [1976] 1 All ER 353 at 367, [1977] AC 195 at 222 per Lord Diplock). In the courts below, both Hall J (sitting as a judge of the Supreme Court) and Campbell JA in the Court of Appeal expressed the opinion that a matter of this kind is ‘more peculiarly within the knowledge and experience of the judges and legislators of a particular country at any given time’. With that sentiment, their Lordships are respectfully in agreement; and it follows that they regard the conclusion reached on this point by a unanimous Court of Appeal of the Bahamas as entitled to great respect, with which they are most unwilling to interfere unless it is plain that they should do so. In all the circumstances, and taking full account of the submissions advanced on behalf of the respondents, they are not minded to depart from the conclusion reached by the Court of Appeal on this issue.

Their Lordships turn finally to the second issue raised by the respondents, which relates to the legal status of magistrates’ courts in the Bahamas.

In the Court of Appeal this was understood to constitute an attack on the constitutionality of the magistrates’ courts, founded upon the fact that, in Chapter VII of the Bahamian Constitution of 1973, which is concerned with the judicature, provision is made for the Supreme Court and the Court of Appeal of the Bahamas, but (unlike the Constitution of Jamaica which was the subject of consideration by the Privy Council in Hinds v R) no provision is made for any inferior courts, and in particular for magistrates’ courts. Their Lordships must confess to not having been surprised that the Court of Appeal understood the argument to be directed at the constitutionality of the magistrates’ courts. Nor were their Lordships surprised that the Court of Appeal briefly dismissed the argument as they understood it, since the magistrates’ courts in the Bahamas were established in that country long before the Constitution of 1973, or indeed the Constitution of 1963, came into force, and are the subject of legislation dating back to 1896 (the Magistrates Act Ch 42); moreover, not surprisingly, there are indirect references to magistrates in the 1973 Constitution itself, to which their Lordships have already referred.

Before their Lordships, however, the respondents expressly disowned any attack on the constitutionality of the magistrates’ courts as such. Instead, relying in particular on the fact that magistrates in the Bahamas have no security of tenure, and that they are categorised in legislation as holders of public offices rather than persons appointed to hold judicial office and in

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consequence as officers whose appointment is the concern not of the Judicial Service Commission but of the Judicial and Legal Service Commission, it was their submission that magistrates in the Bahamas, since they are not appointed in a manner and on the terms laid down in Chapter VII of the Constitution, may not constitutionally be vested with any of the plenitude of judicial power. In so far as by this expression the respondents intended to assert that a magistrates’ court in the Bahamas may not exert the jurisdiction characteristic of a Supreme Court, as identified in Hinds v R, their Lordships are prepared to accept the proposition. But in so far as it was intended to suggest that the magistrates’ courts are not courts of law and are not lawfully entitled, consistently with the Constitution, to exercise the jurisdiction of inferior courts, their Lordships are unable to accept any such submission. Given the nature of a Supreme Court as described in Chapter VII, there is in their opinion nothing in the Constitution inconsistent with the continuance in existence of magistrates’ courts in the Bahamas as in the past before the 1973, or indeed the 1963, Constitution came into force. Indeed it is obvious that the Constitution presupposes the existence of inferior courts, exercising summary jurisdiction, such a role having been historically fulfilled in the past by the magistrates’ courts.

Notwithstanding the powerful argument addressed to them by Mr Glinton on this point, their Lordships are satisfied that, in the last analysis, the second submission of the respondents adds nothing of substance to their first; and that the true question in the case is whether, on the principle stated in Hinds v R, the impugned provisions of the Dangerous Drugs Act are in conflict with the Constitution as purporting to vest in inferior courts part of the jurisdiction which is reserved for the Supreme Court as being a significant part of the jurisdiction which is characteristic of such a court. As their Lordships have already indicated, sub-s (8) in part, and sub-ss (9) to (11), added to s 22 of the Dangerous Drugs Act in 1988, do indeed fall foul of the principle in Hinds v R, and are for that reason unconstitutional and void.

For these reasons, their Lordships will humbly advise Her Majesty that the appeal and the cross-appeal should both be dismissed, and that the decision of the Court of Appeal should be affirmed subject to their Lordships’ conclusion that sub-s (8) of s 22 is only void in so far as it relates to summary convictions.

Appeal and cross-appeal dismissed.

Celia Fox  Barrister.

R v Crown Court at Knightsbridge, ex parte Dunne

Brock v Director of Public Prosecutions

[1993] 4 All ER 491

Categories:        ANIMALS        

Court:        QUEEN’S BENCH DIVISION        

Lord(s):        GLIDEWELL LJ AND CRESSWELL J        

Hearing Date(s):        25 JUNE, 2 JULY 1993        

Animals – Dog – Dangerous dog – Pit bull terrier – Dog of the type known as pit bull terrier – Type – Whether ‘type’ synonymous with ‘breed’ – Whether evidence of behavioural characteristics of dog conclusive in determining whether it is of ‘the type known as the pit bull terrier’ – Dangerous Dogs Act 1991, s 1.

On its true construction s 1a of the Dangerous Dogs Act 1991, which prohibits, inter alia, allowing ‘any dog of the type known as the pit bull terrier’ to be in public without being muzzled and kept on a lead, does not just apply to the breed of dogs known as pit bull terriers, since the word ‘type’ is not synonymous with the word ‘breed’. Instead, giving the phrase ‘any dog of the type known as the pit bull terrier’ its ordinary meaning, s 1 applies to any dog having a substantial number or most of the physical characteristics of a pit bull terrier. Whether a dog is ‘of the type known as the pit bull terrier’ is a question of fact for the court to decide, but in making that determination a court is entitled to use the standards established by the American Dog Breeders’ Association, which lists the basic bodily and behavioural characteristics of the pit bull terrier. However, the fact that a dog does not exhibit the behavioural characteristics of a pit bull terrier is not conclusive in determining that it is not ‘of the type known as the pit bull terrier’ but neither is it irrelevant in proving that it is not a dog of the type of the pit bull terrier (see p 496 j to p 497 a h to p 498 a e to j, post).

Dictum of the Lord Justice General (Hope) in Parker v Annan 1993 SCCR 185 at 190–191 adopted.

Notes

For dangerous dogs generally, see 2 Halsbury’s Laws (4th edn reissue) paras 373–374, and for cases on the subject, see 2 Digest (Reissue) 423–426, 2358–2386.

For the Dangerous Dogs Act 1991, s 1, see 2 Halsbury’s Statutes (4th edn) (1992 reissue) 559.

Case referred to in judgments

Parker v Annan 1993 SCCR 185, HC of Just.

Case also cited or referred to in skeleton arguments

Annan v Troup 1993 SCCR 192, HC of Just.

Application for judicial review

R v Crown Court at Knightsbridge, ex p Dunne

Gary Dunne applied, with the leave of Laws J given on 8 September 1992, for judicial review of the decision of Judge Mendl and two justices made on 5 June

Page 492 of [1993] 4 All ER 491

1992 in the Crown Court at Knightsbridge whereby they allowed his appeal against his conviction in the Wells Street Magistrates’ Court on 30 December 1991 on a charge of being the owner of a dog to which s 1 of the Dangerous Dogs Act 1991 applied, namely a dog of the type known as the pit bull terrier, who allowed the dog to be in a public place without being muzzled, contrary to s 1(2)(d) of that Act. The relief sought was a declaration that in so far as the judgment of the Crown Court held that the applicant had failed to displace the presumption under s 5(5) of the 1991 Act that his dog was a dog of the type known as the pit bull terrier the Crown Court had erred in its interpretation of the phrase ‘any dog of the type known as the pit bull terrier’, and that on a proper construction of the 1991 Act the word ‘type’ should be defined in its technical sense of being equivalent to ‘breed’, rather than given a broad, popular meaning. The facts are set out in the judgment of Glidewell LJ.

Brock v DPP

Karen Brock appealed by way of a case stated by the Crown Court at Wood Green (Judge Zucker QC and two justices) in respect of its adjudication on 9 December 1992 whereby, on an appeal from justices sitting at Barnet Magistrates’ Court on 4 August 1992, the Crown Court upheld the conviction of the appellant of having in her possession or custody a dog called ‘Buster’ to which s 1 of the Dangerous Dogs Act 1991 applied, namely a dog of the type known as the pit bull terrier, contrary to s 1(3) of that Act. The questions for the opinion of the High Court were whether the Crown Court was correct in deciding that, in determining whether a dog was ‘of the type known as the pit bull terrier’, the behaviour of the dog, such as whether or not it had shown dangerous proclivities, was irrelevant, whether the Crown Court was correct in deciding that s 1(1) of the 1991 Act raised the questions ‘Known to whom; and in accordance with what criteria?’ and that the answer was ‘Known to those experienced in identifying pit bull terriers in accordance with a recognised and accepted standard’ and whether the Crown Court was correct in deciding that the American Dog Breeders Association (ADBA) standard provided a criterion by which it could be determined whether or not a dog was of the type known as the pit bull terrier. The facts are set out in the judgment of Glidewell J.

William Locke (instructed by Winstanley-Burgess) for Dunne.

Peter Ader (instructed by the Crown Prosecution Service, North London) for the respondent in Dunne’s case.

John H Trumpington (instructed by Landau & Cohen, Edgware) for Brock.

Andrew Brierley (instructed by the Crown Prosecution Service, Wood Green) for the respondent in Brock’s case.

Cur adv vult

2 July 1993. The following judgments were delivered.

GLIDEWELL LJ. In these two cases, although somewhat different questions are raised, essentially the same point is in issue, namely the proper interpretation of the phrase ‘any dog of the type known as the pit bull terrier’ in s 1(1)(a) of the Dangerous Dogs Act 1991. We heard argument in the two cases consecutively. It is convenient to deal with them both in this one judgment.

Mr Dunne

The applicant, Mr Gary Dunne, was charged that on 26 November 1991—

Page 493 of [1993] 4 All ER 491

‘being the owner of a dog to which Section 1 of the Dangerous Dogs Act 1991 applied, namely a dog of the type known as the pit bull terrier, [he] allowed such dog to be in a public place … without being muzzled’

contrary to s 1(2)(d) of the 1991 Act. He was convicted at the Wells Street Magistrates’ Court on 30 December 1991. He appealed to the Crown Court at Knightsbridge. On 5 June 1992 that court (Judge Mendl and magistrates) decided that (1) the applicant had failed to prove that his dog was not of the type known as the pit bull terrier, but (2) the prosecution had failed to prove that the dog was unmuzzled. The court therefore allowed the applicant’s appeal.

The applicant has been advised that he cannot appeal against the Crown Court’s conclusion that he had failed to prove that the dog was not of the type known as the pit bull terrier. He therefore seeks judicial review of that decision, for which he has been given leave. The relief he seeks is:

‘A declaration that in its judgment of 5 June 1992, the Crown Court erred in its interpretation of the phrase “any dog of the type known as the pit bull terrier”, and that on a proper construction of the statute the word “type” in the phrase should be defined in its technical sense—here equivalent to “breed”—rather than given a broad, popular meaning.’

The procedure

For the determination of this question procedure by way of judicial review is not wholly satisfactory. In particular, we do not have any clear findings of fact by the Crown Court upon which it based its conclusion. Moreover, I am not satisfied that Mr Dunne did not have a right of appeal by way of case stated. So far as is material, s 28(1) of the Supreme Court Act 1981 provides:

‘… any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.’

It is in my view arguable that the interpretation placed by the Crown Court on the meaning of the words ‘of the type known as the pit bull terrier’ was a decision which could properly have been the subject of a case stated.

However, both parties were agreed that procedure by way of judicial review was appropriate in the circumstances, and we therefore assumed jurisdiction to hear Mr Dunne’s application.

The legislation

The 1991 Act was brought into force by a commencement order made by the Secretary of State for the Home Department on 12 August 1991. The long title is:

‘An Act to prohibit persons from having in their possession or custody dogs belonging to types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dogs which prevent a serious danger to the public; to make further provision for securing that dogs are kept under proper control; and for connected purposes.’

The provisions of the 1991 Act which are relevant to this application are as follows:

Page 494 of [1993] 4 All ER 491

‘1. Dogs bred for fighting.—(1) This section applies to—(a) any dog of the type known as the pit bull terrier …

(2) No person shall … (d) allow such a dog of which he is the owner or of which he is for the time being in charge to be in a public place without being muzzled and kept on a lead …

(3) After such day as the Secretary of State may by order appoint for the purposes of this subsection no person shall have any dog to which this section applies in his possession or custody … [The date appointed for the purposes of this subsection was 30 November 1991: see SI 1991/1742] …

(5) The Secretary of State may by order provide that the prohibition in subsection (3) above shall not apply in such cases and subject to compliance with such conditions as are specified in the order and any such provision may take the form of a scheme of exemption containing such arrangements (including provision for the payment of charges or fees) as he thinks appropriate …’

The order made under sub-s (1) by the Secretary of State provides that a certificate of exemption may be issued in respect of a dog of the type known as the pit bull terrier, or any other dog coming within s 1(1), whose owner satisfies certain conditions in relation to the dog. Subsection (7) makes it an offence to contravene the provisions of s 1.

The provisions continue:

4.—(1) Where a person is convicted of an offence under section 1 or 3(1) or (3) above … the court—(a) may order the destruction of any dog in respect of which the offence was committed and shall do so in the case of an offence under section 1 …

5 … (5) If in any proceedings it is alleged by the prosecution that a dog is one to which section 1 … applies, it shall be presumed that it is such a dog unless the contrary is shown by the accused by such evidence as the court considers sufficient …’

It is agreed between counsel, in my view entirely correctly, that the burden placed on the accused by this subsection is to prove the contrary on the balance of probabilities.

The issues before the Crown Court

These were: (i) had the appellant proved, on the balance of probabilities, that his dog was not of the type known as the pit bull terrier; (ii) if not, had the prosecution proved that on 26 November 1991 the dog was not muzzled?

On 26 November 1991 Mr Dunne said that, in case his dog were to be found to be of the type known as the pit bull terrier, he was about to take the necessary steps to obtain a certificate of exemption for it. It is common ground that at that date he had not done so.

We have a note of the judgment given by Judge Mendl in the Crown Court. It starts by posing the two questions set out above. In considering the first question, the judge properly started by deciding the proper interpretation of the phrase ‘any dog of the type known as the pit bull terrier’. He said:

‘With regard to s 1(1)(a), if it were intended that it should refer to the particular breed, there would have been no difficulty in defining the breed by saying “any American pit bull terrier”, even though that breed is not accepted by the British Kennel Club. We therefore find that the meaning in the Concise Oxford English Dictionary is appropriate—a general meaning not a

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technical one. The words mean that a dog “of the type known as a pit bull terrier” is an animal approximately amounting to, near to, having a substantial number of the characteristics of the pit bull terrier.’

Having so defined the phrase, the court went on to consider whether the evidence established that the applicant’s dog was not of the type known as the pit bull terrier. The judge summarised the evidence of Dr Mugford, an expert witness called on behalf of the applicant, and of witnesses called on behalf of the prosecution. He then said:

‘Considering all the evidence that we have heard and the burden of proof, we conclude the appellant has not discharged the burden of proving that [the applicant’s dog] is not a dog of the type known as the pit bull terrier.’

The court however then concluded that the prosecution had not satisfied the burden of proving that at the relevant time the dog was unmuzzled. Thus the appeal was allowed.

The issue for this court

The issue for us to decide is: did the Crown Court err in law in its interpretation of the phrase ‘any dog of the type known as the pit bull terrier’? The submission of Mr Locke, for the applicant, is that the word ‘type’ in the 1991 Act has the same meaning as the word ‘breed’.

Before expressing my conclusion on this application, I think it right to turn to the appeal of Miss Brock, which raises wider issues.

Miss Brock’s appeal

This is by way of case stated by the Crown Court at Wood Green which dismissed the appeal from justices for the petty sessional division of Barnet. On 4 August 1992 those justices convicted Miss Karen Brock of having in her possession or custody a dog called ‘Buster’ to which s 1 of the 1991 Act applied, namely a dog of the type known as the pit bull terrier, contrary to s 1(3) of the Act. The Crown Court (Judge Zucker QC and magistrates) heard the appeal over three days and gave its judgment on 9 December 1992.

Facts admitted and proved

The case stated as follows:

‘3. The appellant admitted that—(a) she had the dog in her possession on 26th December 1991 (b) the dog had not been neutered, tattooed, implanted, insured nor registered. It was not therefore exempt on that ground from the prohibition against possession or custody of a dog to which section l of the Act applied …

5. We found the following facts:—(a) Pit bull terriers were first bred in England as fighting dogs. Some time in the middle of the last century they were imported into the United States of America. When dog fighting was banned and died out in England about the middle of the last century, pit bull terriers were no longer bred here. The development of the breed however continued in the United States of America. In 1976 two female pit bull terriers were imported back into England, followed by a stud dog called “Al Capone”. From that beginning pit bull terriers have been bred in England. (b) Dogs, generally, have breed standards which are laid down and recognised by different associations of dog breeders. The leading association in England is the Kennel Club. Because of the long period when pit bull terriers were

Page 496 of [1993] 4 All ER 491

not bred in this country, The Kennel Club has no standard for pit bull terriers, nor has any other association in this country. (c) Because pit bull terriers have been bred over a long period in the United States of America there are breed standards promulgated by associations of dog breeders in the United States of America. (d) One of those associations is that of the American Dog Breeders’ Association (ADBA). ADBA was founded in 1909, has always existed for pit bull terriers alone and has never registered any other breed. It is the most detailed standard. It deals with physical characteristics. It is widely used and accepted. The pit bull terriers originally imported into this country were registered with ADBA. (e) A second, less detailed standard is that of the United Kennel Club (UKC). (f) ADBA does not recognise the standard of UKC and vice-versa.’

In para 6 the Crown Court summarised the evidence of Dr Mugford called on behalf of the appellant. This mainly related to the behavioural characteristics of Buster and of pit bull terriers generally.

The court recorded its conclusions as follows:

‘9. We were of the opinion that:—(a) In determining whether a dog was “of the type known as the pit bull terrier” the behaviour of the dog, whether or not it had shown dangerous proclivities, was irrelevant. (b) Section 1(1) of the said Act raises the questions: “Known to whom; and in accordance with what criteria?” The answer is, known to those experienced in identifying pit bull terriers and in accordance with a recognised and accepted standard. (c) The ADBA’s standard provides a criterion by which it can be determined whether or not a dog is of the type known as the pit bull terrier. There may be other such standards.

10. We accepted the evidence of the respondent’s witnesses and did not accept the evidence of the witnesses called on behalf of the appellant. We found that the characteristics of the appellant’s dog substantially conformed to the ADBA’s standard and was of the type known as the pit bull terrier.

11. The appellant therefore failed to adduce sufficient evidence to rebut the presumption that her dog was of the type known as the pit bull terrier.

12. We therefore dismissed the appeal.

Questions

13. Questions for the opinion of the High Court are as follows:—(a) Were we correct in deciding that in determining whether a dog was “of the type known as the pit bull terrier”, the behaviour of the dog such as whether or not it had shown dangerous proclivities, was irrelevant? (b) Were we correct in deciding that s 1(1) of the said Act raised the questions “Known to whom; and in accordance with what criteria?” And that the answer was “Known to those experienced in identifying pit bull terriers in accordance with a recognised and accepted standard”. (c) Were we correct that the ADBA standard provided a criterion by which it could be determined whether or not a dog is of the type known as the pit bull terrier?’

Conclusion

Interpreting the phrase ‘of the type known as the pit bull terrier’ in s 1(1) of the statute simply by the normal canon of construction, ie by giving the words their ordinary meaning, I entirely agree with the decision of the Crown Court in both cases that the word ‘type’ is not synonymous with the word ‘breed’. The definition of a breed is normally that of some recognised body such as the Kennel Club in the United Kingdom. I agree with the Crown Court in both cases that the

Page 497 of [1993] 4 All ER 491

word ‘type’ in this context has a meaning different from and wider than the word ‘breed’. I would so conclude by reading only s 1 of the 1991 Act. But that this is so is made even clearer by reference to a subsection to which I have not so far referred, namely s 2(4) of the 1991 Act. This provides:

‘In determining whether to make an order under this section in relation to dogs of any type … the Secretary of State shall consult with such persons or bodies as appear to him to have relevant knowledge or experience, including … a body concerned with breeds of dogs.’

In that subsection the two words are being used in contradistinction to each other.

We have been referred to two judgments of the High Court in Scotland on appeals by case stated from decisions of the Sheriff Court at Linlithgow in trials for offences against s 1(3) of the 1991 Act. Both judgments were given by the Lord Justice General (Hope) on 17 December 1992. In Parker v Annan 1993 SCCR 185, the first of the two judgments to be delivered, the question whether the word ‘type’ in s 1 is synonymous with the word breed was considered. In his judgment, the Lord Justice General said (at 190–191):

‘There is an absence of any precise criteria by which a pit bull terrier may be identified positively as a breed and by this means distinguished from all other dogs. One must of course be careful not to extend the application of the section to dogs other than those which are described in it. A dog must be of the type known as the pit bull terrier if the section is to apply to it. But the phrase used by the statute enables a broad and practical approach to be taken, in a field in which it has been recognised that the pit bull terrier cannot, in this country at least, be precisely defined by breed or pedigree. For these reasons we do not think that the sheriff misdirected himself when he regarded as highly significant Mr Hayworth’s evidence that Kim resembled a pit bull terrier more than any other type of dog and declined to rely on Dr Peachey’s opinion that although she resembled a pit bull terrier she was not in fact one but was a mongrel. He was right to approach the case on the basis that a dog could be of the type known as the pit bull terrier although it was not purebred as such on both sides. We do not find anything in his use of words to suggest that he applied the wrong test in his approach to the evidence. The question whether the evidence as to Kim’s characteristics was sufficient to show that she was not a dog of this type was a question of fact for him to decide.’

I would respectfully agree with and adopt that passage.

Having decided that the word ‘type’ has a wider meaning than the word ‘breed’, a court then has to adopt some guide for determining the limits of the phrase ‘any dog of the type known as the pit bull terrier’. What that guide should be, and where those limits lie, are questions of fact for the decision of the magistrates or the Crown Court, on the evidence. In these matters, the courts in both cases heard evidence that the ADBA laid down a breed standard for pit bull terriers in the USA. The Crown Court in both cases was therefore entitled to use the ADBA standard as a guide. However, both courts were also entitled to find, on the evidence before them, that the fact that a dog does not meet that standard in every respect is not conclusive. Thus both courts could properly conclude that a dog was of the type known as the pit bull terrier if, as the Crown Court at Wood Green found, its characteristics substantially conformed to the ADBA’s standard or, to use the words of the Crown Court at Knightsbridge, if the dog

Page 498 of [1993] 4 All ER 491

approximately amounted to, was near to, or had a substantial number of the characteristics of the pit bull terrier as set out in the ADBA’s standard.

This is sufficient to answer the question posed by Mr Dunne’s application, and also to answer both questions (b) and (c) raised in Miss Brock’s appeal in the affirmative.

It leaves the first question raised in Miss Brock’s appeal, whether evidence as to the behaviour of the dog in question was irrelevant. The transcripts of judgments given in the Crown Court in several cases show that different judges have differed about the proper answer to this question.

A copy of the ADBA’s standard is exhibited to the case stated in Miss Brock’s appeal. In somewhat colourful language, the standard does refer both to bodily characteristics of a dog and to its behavioural characteristics. It is true it contains a long and detailed description of the bodily characteristics of an ideal pit bull terrier, but in another passage it is also said that the dog should have the following characteristics: (i) gameness, (ii) aggressiveness, (iii) stamina, (iv) wrestling ability, (v) biting ability.

No doubt the last three of these can be said to be functions of the dog’s bodily characteristics, but the first two are obviously aspects of behaviour. Moreover, the standard concludes that, in judging the American Pit Bull Terrier, up to 10 points, out of a maximum of 100, can be awarded for the dog’s attitude. To an extent, therefore, the ADBA criteria include behavioural characteristics.

If, in framing the case stated, the Crown Court at Wood Green intended to say that evidence that the dog did not have some of the behavioural characteristics of a pit bull terrier was not conclusive that it was not of the type of the pit bull terrier, I would entirely agree. But in my judgment it must follow, if the ADBA’s standard is a proper starting point, that it is relevant to consider whether or not a dog exhibits the behavioural characteristics of a pit bull terrier, and evidence about the dog’s behaviour cannot be irrelevant.

I emphasise that such evidence is not conclusive. It is clear from the long title to the 1991 Act that its first purpose is ‘to prohibit persons from having in their possession … dogs belonging to types bred for fighting’. On appropriate evidence, a court would be entitled to express its conclusion in such words as: ‘We find that this dog has most of the physical characteristics of a pit bull terrier. The fact that it appears not to be game or aggressive is not sufficient to prove, on balance, that it is not a dog of the type of the pit bull terrier.’

Nevertheless in my judgment for the reasons I have sought to explain evidence on this subject is relevant and must be given some weight.

For these reasons I would refuse to grant a declaration in the terms sought by Mr Dunne. I would however answer the first question posed in the case stated on Miss Brock’s appeal in the negative. Thus I would allow her appeal. We will consider, after submissions from counsel, what results follow or should follow from our decisions in both these cases.

CRESSWELL J. I agree.

Declaration refused in Dunne’s case. Appeal in Brock’s case allowed; decision of Crown Court quashed; rehearing ordered.

Dilys Tausz  Barrister.

Re Carecraft Construction Co Ltd

[1993] 4 All ER 499

Categories:        COMPANY; Directors        

Court:        CHANCERY DIVISION (COMPANIES COURT)        

Lord(s):        FERRIS J        

Hearing Date(s):        9, 10 DECEMBER 1992, 18 MARCH 1993        

Company – Director – Disqualification – Disqualification order – Procedure – Summary procedure for making order – Directors prepared to accept that their conduct made them unfit to be concerned in management of company if application dealt with summarily – Whether court having jurisdiction to make order without requiring full hearing – Company Directors Disqualification Act 1986, s 6.

The two respondents were directors of five connected companies which had all become insolvent. On 2 November 1988 the Official Receiver sent the respondents notice of his intention to apply for disqualification orders under s 6a of the Company Directors Disqualification Act 1986 in respect of the respondents on the grounds that they were directors of a company at a time when the companies became insolvent and that their conduct made them unfit to be concerned in the management of a company. On 11 November summonses seeking the disqualification orders were sent to the respondents supported by reports made by the Official Receiver. The hearing of the summonses was then delayed for two years because of procedural difficulties. When the summonses came before the judge a schedule of agreed facts was put before him and the respondents accepted that on those facts it was likely that they would be found unfit to be concerned in the management of a company and stated that they were prepared to accept an immediate disqualification order for the minimum period of two years if various issues still in dispute were not proceeded with. The Official Receiver stated that he was content for the court to proceed in a summary manner without requiring a full hearing. The questions arose (1) whether the court had jurisdiction to proceed in such a way without requiring a full hearing, (2) if so, whether it was appropriate to deal with the respondents in such a manner, and (3) whether, in all the circumstances, the judge was satisfied that a disqualification order had to be made and, if so, that it need be for no longer than two years.

Held – (1) It was a condition precedent to the making of a disqualification order under s 6 of the 1986 Act that the court was satisfied that the conduct of a director in relation to a particular company or companies made him unfit to be concerned in the management of a company. There was therefore no scope in disqualification proceedings for the parties to reach an agreement and then ask the court to embody their agreement in a consent order, but, on the other hand, the court had no means to control the way in which either party conducted its case, whether in respect of the scope and definition of the charges made or disputed or in respect of the evidence which was presented in order to support or rebut the charges. Accordingly, by analogy with other situations, such as a plea of guilty in criminal proceedings, inheritance proceedings and restrictive trade practices proceedings, in which the court, while needing to be satisfied of certain matters and to exercise its own discretion, could in appropriate cases dispense with a full hearing, the court had jurisdiction to deal with an application

Page 500 of [1993] 4 All ER 499

under s 6 of the 1986 Act summarily without requiring a full trial and without requiring the parties to contest every point, provided some evidence and not merely an assertion of no evidential value or an admission which was unsupported by evidence was presented to the court which established unfitness. If the court considered that the disputed evidence substantially affected the seriousness of the unfitness it could in its discretion decline to deal with the matter summarily and direct a full hearing (see p 507 c to p 508 a and p 510 a to g, post); Re Net Book Agreement 1957 (No 2) (1964) LR 4 RP 484 applied.

(2) The undisputed evidence put before the court contained all the facts necessary to establish that the conduct of the respondents made them unfit to be concerned in the management of a company but even if the disputed evidence was proved it was not such as to have a significant impact on the seriousness of the respondents’ conduct. In the circumstances a relatively short period of disqualification would be appropriate and a two year period of disqualification would be imposed (see p 511 a to c g to j and p 512 e h, post).

Notes

For the power of the court to make disqualification orders against company directors, see 7(1) Halsbury’s Laws (4th edn reissue) paras 569–585 and 7(2) Halsbury’s Laws (4th edn reissue) paras 2105–2134, and for cases on the subject see 9(2) Digest (2nd reissue) 119–123, 4156–4169 and 10(2) Digest (2nd reissue) 289–290, 11635–11636.

For the Company Directors Disqualification Act 1986, s 6, see 8 Halsbury’s Statutes (4th edn) (1991 reissue) 786.

Cases referred to in judgment

Cedac Ltd, Re [1990] BCC 555.

Cutts v Head [1984] 1 All ER 597, [1984] Ch 290, [1984] 2 WLR 349, CA.

Fullard (decd), Re [1981] 2 All ER 796, [1982] Fam 49, [1981] 3 WLR 743, CA.

Net Book Agreement 1957, Re [1962] 3 All ER 751, [1962] 1 WLR 1347.

Net Book Agreement 1957, Re (No 2) (1964) LR 4 RP 484.

R v Newton (1982) 4 Cr App R (S) 388, CA.

Secretary of State for Trade and Industry v Langridge [1991] 3 All ER 591, [1991] Ch 402, [1991] 2 WLR 1343, CA.

Sevenoaks Stationers (Retail) Ltd, Re [1991] 3 All ER 578, [1991] Ch 164, [1990] 3 WLR 1165, CA.

Cases also cited

Bath Glass Ltd, Re [1988] BCLC 329.

Chartmore Ltd, Re [1990] BCLC 673.

Cladrose Ltd, Re [1990] BCLC 204.

Gross v O’Toole (1982) 4 Cr App R (S) 283, DC.

Lo-Line Electric Motors Ltd, Re [1988] 2 All ER 692, [1988] Ch 477.

Majestic Recording Studios Ltd, Re [1989] BCLC 1.

R v Atkinson (Leslie) [1978] 2 All ER 460, [1978] 1 WLR 425, CA.

R v Ghandi (1986) 8 Cr App R (S) 391, CA.

R v Kerr (1980) 2 Cr App R (S) 54, CA.

R v Newell (20 June 1972, unreported).

R v Ogunti (1987) 9 Cr App R (S) 325, CA.

R v Turner [1970] 2 All ER 281, [1970] 2 QB 321, CA.

Tasbian, Re (No 3) [1991] BCC 435.

Page 501 of [1993] 4 All ER 499

Williams v Another (1983) 5 Cr App R (S) 134, DC.

Summonses

By a summons issued on 11 November 1988, the Official Receiver sought orders under s 6 of the Company Directors Disqualification Act 1986 against the respondents, Andrew Jonathan Hayes and Paul John Wilson, that they should not without the leave of the court be a director of, or in any way whether directly or indirectly be concerned or take part in the promotion, formation or management of, a company for a period of not less than two years from the date of such orders. The facts are set out in the judgment.

A W H Charles and Matthew Collings (instructed by the Treasury Solicitor) for the Official Receiver.

Roger Kaye QC (instructed by Binks Stern) for Mr Hayes.

Marcia Shekerdemian (instructed by Shepherd Harris & Co, Enfield) for Mr Wilson.

Cur adv vult

18 March 1993. The following judgment was delivered.

FERRIS J. These applications under s 6 of the Company Directors Disqualification Act 1986 for disqualification orders against the respondents Paul John Wilson and Andrew Jonathan Hayes came before me on 9 and 10 December 1992. At that hearing I was asked to deal with the applications in what may be described as a summary way. I will explain later what is meant by that. It was common ground between the parties that if I found that I had no jurisdiction to deal with the applications in this way, or if I found that these particular applications were not appropriate to be dealt with in such a way, the applications would have to be adjourned for a full hearing at a later date. After hearing argument I concluded that I had the requisite jurisdiction and that these cases could properly be dealt with in exercise of it. I made a disqualification order in relation to each of the respondents for the period of two years, which is the minimum period of disqualification in a case where the court is satisfied of the matters referred to in s 6. I said that I would put my reasons for making these orders in writing and deliver them at a later date, which I now do.

So far as material, s 6 of the 1986 Act provides as follows:

‘Duty of court to disqualify unfit directors of insolvent companies.—(1) The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied—(a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and (b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company.

(2) For the purposes of this section and the next, a company becomes insolvent if—(a) the company goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up, (b) an administration order is made in relation to the company, or (c) an administrative receiver of the company is appointed; and references to a person’s conduct as a director of any company or companies include, where that company or any of those

Page 502 of [1993] 4 All ER 499

companies has become insolvent, that person’s conduct in relation to any matter connected with or arising out of the insolvency of that company …’

The applications are made in respect of the conduct of the respondents as directors of five companies, namely Carecraft Construction Co Ltd (Carecraft), Carecraft Development Co Ltd (CDC), Carecraft Plumbing and Heating Supplies Ltd (CPHS), Carecraft Group Ltd (CG) and Carecraft Roofing Co Ltd (CRC). All these companies are now in compulsory liquidation or in creditors’ voluntary liquidation. The dates of their incorporation and liquidation are set out in the following table.

Company        Incorporation date        Liquidation date        

Carecraft         3 August 1984         14 November 1986        

CDC         3 August 1984         25 May 1988        

CPHS         9 April 1984         17 June 1986        

CG         28 May 1985         14 November 1986        

CRC         14 August 1984         18 November 1986        

There is no doubt that the assets of each company were, at the date of its liquidation, insufficient for the payment of its debts and other liabilities and the expenses of its winding up. Accordingly, each company became insolvent for the purposes of s 6 on the date mentioned opposite its name in the third column of the table.

The respondent Paul John Wilson is a builder who traded as a sole trader until the companies were incorporated in 1984. Upon incorporation Mr Wilson became a director of each of the companies and he remained a director until the commencement of the winding up of each company.

The respondent Andrew Jonathan Hayes is a chartered accountant. He advised Mr Wilson in relation to the structure of the companies. He became a director of each of them on 26 July 1985 (or 24 July 1985 in the case of CG) and remained as a director until the commencement of the winding up of each company. Initially he worked for each company only on a part-time basis, but he started to work full-time for the companies in April 1986. He was principally responsible for the accounting side of each company’s activities.

Apart from Mr Wilson and Mr Hayes there was at least one other director of each company except CG. In the case of Carecraft there were three other directors at all material times and in the case of CRC there were two other directors. The third director of CPHS ceased to hold office on 14 March 1985, so that between that date and 26 July 1985 Mr Wilson was sole director and after 26 July 1985 Mr Wilson and Mr Hayes were the only directors of CPHS.

The facts which I have stated so far were not in dispute. The further facts which I am about to state in relation to each of the companies were either formally agreed or constitute facts which the respondents were content for me to assume to be correct, although some of them might have been disputed or qualified if I had not been willing to proceed on the summary basis which I shall describe.

Carecraft

Carecraft carried on the business formerly carried on by Mr Wilson as sole trader. Its statement of affairs discloses trade creditors amounting to £191,911·16, some of which go back to March 1986. There are six other creditors whose debts amount to something over £66,000. These include Mr Wilson and Mr Dawkins (one of the other directors of Carecraft) who had together lent

Page 503 of [1993] 4 All ER 499

Carecraft about £50,000. All of these debts are unsecured and there will be no dividend for unsecured creditors in the liquidation. In addition Mr Wilson and Mr Hayes guaranteed the indebtedness of Carecraft to its bank, National Westminster Bank. Mr Wilson has been required to pay more than £100,000 to the bank in his capacity as guarantor and Mr Hayes has paid £30,000.

No annual returns or accounts in respect of Carecraft were ever filed at the Companies Registry. Cash flow problems were being suffered in Carecraft from April 1986 at the latest, but trading was continued on the assumption that work in progress and trade debtors, when realised, would be sufficient to cover liabilities. Suppliers and wages were generally paid, but Crown debts accrued, some of which dated back to June 1984. No returns were made in respect of PAYE and national insurance. On 23 July 1986 a creditor obtained judgment in the sum of £6,665 and this remained unsatisfied when Carecraft went into liquidation.

When Mr Hayes began to work full-time for Carecraft and the other companies in April 1986 the financial and other records of Carecraft were inadequate. Mr Hayes sought to bring them up to date, but he was unable to do so quickly because of the inadequacy of the books, records and accounts and because he had to deal with other pressing problems concerning Carecraft’s trading and business. He also lacked input and assistance from others, including Mr Wilson who was primarily concerned with the day-to-day building business. Mr Hayes’ difficulties were increased when many books and documents of Carecraft were destroyed or stolen as a result of a break-in at Carecraft’s premises in October 1986.

Accounts were not prepared for Carecraft until October 1986. The true financial position of Carecraft was then realised. Mr Hayes promptly brought in a qualified insolvency practitioner who advised liquidation. The requisite resolution was passed on 14 November 1986.

CDC

CDC traded only to a very limited extent. It operated rent-free from Carecraft’s office. It was involved in only one transaction, namely the prospective purchase of a property at Enfield. A contract was entered into and a deposit of £4,500, all of which was borrowed from National Westminster Bank, was paid. When the time for completion came sufficient funds to enable CDC to complete could not be raised and the deposit was forfeited. The indebtedness of CDC to the bank in respect of the money lent for the deposit was covered by the directors’ guarantee. It appears that at some stage CDC borrowed £28,000 from the bank on loan account, but in July 1986 this sum was, on the authority of Mr Wilson alone, transferred from CDC’s account to Carecraft’s account. The result appears to have been that CDC remained indebted to the bank for £28,000 but became a creditor of Carecraft for an equivalent sum. Apart from this CDC has one unsecured trade creditor in the sum of £2,627. This seems to have arisen from an invoicing error under which the creditor rendered its invoice to CDC instead of Carecraft, which was the party truly liable. Nevertheless the creditor successfully petitioned for the winding up of CDC on the basis of this debt.

CPHS

CPHS has unsecured trade creditors of £33,138 to whom no dividend will be paid. It also has preferential debts and unsecured Crown debts. It lent £8,637 to

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Carecraft, none of which is recoverable. No annual returns or accounts were filed at the Companies Registry in respect of CPHS. The position regarding its books and records is similar to that regarding the books and records of Carecraft.

CG

CG has two unsecured trade creditors in the total sum of £2,542. No annual returns or accounts were filed at the Companies Registry in respect of it. The position regarding its books and records is similar to that regarding the books and records of Carecraft.

CRC

CRC has unsecured trade creditors of £5,683 to whom no dividend will be paid. It also has preferential debts and unsecured Crown debts. No annual returns or accounts were filed at the Companies’ Registry in respect of CRC. The position regarding its books and records is similar to that regarding the books and records of Carecraft. The management of CRC seems to have been largely in the hands of a director other than Mr Wilson and Mr Hayes. This director had experience of roofing, but knew little about the management of a limited company. Mr Wilson was a director of CRC, but concentrated his efforts on Carecraft and left the management of CRC to this other director.

Some other facts have been alleged by the Official Receiver in relation to all the companies, but these are not agreed and would, if the application proceeded to fully contested hearings, be subject to dispute and cross-examination. I think it is neither necessary nor fair to set out these disputed facts in any detail for present purposes, but I will refer to them in general terms at a later stage.

Course of the proceedings

On 2 November 1988 the Official Receiver sent to Mr Wilson and Mr Hayes notice of his intention to apply for disqualification orders as required by s 16 of the 1986 Act. On 11 November 1988 a summons seeking such an order was issued against each respondent. These summonses were supported by reports made by the Official Receiver in each case on 9 November 1988. Evidence in answer was sworn by each respondent; the Official Receiver made a second report in reply to the affidavit of Mr Wilson; and Mr Wilson swore an affidavit in answer to certain evidence of Mr Hayes which made criticisms of him.

The two summonses which I have mentioned, although issued within the two-year period prescribed by s 7(2) of the 1986 Act, were issued on the tenth day after the date of the letters if the day on which the letters were sent and the day on which the summonses were issued are both included in the period, but there were only eight clear days between the letters and the issuing of the summonses. In Re Cedac Ltd [1990] BCC 555 Mummery J held, in relation to a different application under the 1986 Act, that the ten-day period referred to in s 16(1) was a period of ten clear days, that the provision for a ten-day notice was mandatory, and that the summons in that case should be struck out. Nevertheless he gave leave for a new summons to be issued out of time pursuant to s 7(2).

The judgment of Mummery J was given on 18 May 1990. There was an appeal and a cross-appeal. On 12 February 1991 the Court of Appeal allowed the appeal on the striking out issue on the ground that the requirement of a ten-day notice was directory not mandatory. The question of leave to issue a new summons out of time did not therefore arise (see Secretary of State for Trade and Industry v Langridge [1991] 3 All ER 591, [1991] Ch 402).

Page 505 of [1993] 4 All ER 499

These events had an important impact on the present cases. On 30 July 1990 the Official Receiver issued new summonses against Mr Wilson and Mr Hayes seeking leave, in case the existing summonses were struck out, to commence new proceedings under the 1986 Act. On 18 and 22 October 1990 respectively Mr Hayes and Mr Wilson made applications for the original summonses against them to be struck out and on 25 October 1990 Mr Registrar Dewhurst made what were thought to be striking out orders. The Official Receiver appealed against these orders. There was then some delay while the decision of the Court of Appeal in Secretary of State for Trade and Industry v Langridge was awaited. There was also some confusion when doubt was cast upon precisely what the registrar had done and upon precisely what grounds he had acted. The procedural difficulties were not finally removed until orders were made by Chadwick J on 18 May 1992. These orders left the Official Receiver free to proceed with the applications made by the original summonses issued on 11 November 1988.

The relevance of this procedural history is that there was a period, which appears to have lasted from some time in or before May 1990 until May 1992, in which little or no progress was made towards the substantive hearing of these applications.

The summary procedure now proposed

Having regard to the areas of dispute on factual matters which remain in these cases, the procedural delay which has occurred and the attitude adopted by Mr Wilson and Mr Hayes, I was asked to follow a procedure which has not hitherto been adopted in cases of this kind. What was proposed can be summarised as follows.

(1) There was presented to me a schedule of agreed facts. These were, in substance, the facts which I have already stated.

(2) It was stated on behalf of Mr Wilson and Mr Hayes that, on the footing that I was prepared to deal with the matter as proposed, they accepted that I would be likely to find that their conduct as directors of Carecraft, taken in conjunction with their conduct as directors of CDC, CPHS, CG and CRC, made them unfit to be concerned in the management of a company. The result of my so finding would be that I would be obliged to make a disqualification order for the minimum period of two years in the case of each of them.

(3) On this footing the Official Receiver stated through counsel that he did not think it necessary to press me to decide the various issues about which there was no agreement. Moreover he accepted that, even if I were to find in his favour on most or all of these issues, such findings would not raise the case against either Mr Wilson or Mr Hayes into a different bracket of seriousness. Although such findings, if made, might cause me to make a disqualification order for longer than the minimum period, the Official Receiver was content, in all the circumstances, including the mitigation advanced on behalf of Mr Wilson and Mr Hayes, not to submit that the case is one in which more than the minimum period of disqualification ought to be imposed.

(4) On the same footing it was not submitted on behalf of Mr Wilson and Mr Hayes that no disqualification order at all should be made. Counsel for Mr Wilson and Mr Hayes did, however, make submissions to me to the effect that the period of disqualification should be no longer than two years. These submissions were both as to the seriousness of the conduct of Mr Wilson and Mr Hayes, as appearing from the agreed facts, and as to various features of

Page 506 of [1993] 4 All ER 499

mitigation based upon those facts and upon evidence not going directly to the conduct complained of.

(5) It was common ground between the parties that if I were unwilling to proceed on the basis I have summarised at paras (1) to (4) and to make a disqualification order for two years only, I should make no further decision but should give procedural directions with a view to the applications coming before another judge for a full hearing.

It appears to me that these proposals raised three issues, namely: (1) whether the court has jurisdiction to proceed in this way, without requiring a full hearing; (2) if the court has such jurisdiction, whether the present cases are appropriate to be dealt with in accordance with it; and (3) whether, in all the circumstances, I can be satisfied both that a disqualification order has to be made and that it should be for no longer than two years. After hearing argument I came to the conclusion that each of these questions is to be answered in the affirmative.

Has the court jurisdiction to proceed in the way proposed?

In order to answer this question reference must be made to the 1986 Act. Section 1 is a general provision which says that the court may, and under s 6 must, in certain circumstances make a disqualification order, the scope of which is prescribed. I have already cited the provisions of s 6, so far as material. By s 7(1) an application under s 6 is to be made by the Secretary of State or, in certain cases, by the Official Receiver at the direction of the Secretary of State—

‘If it appears to the Secretary of State that it is expedient in the public interest that a disqualification order under s 6 should be made …’

It is right to note also s 8 under which the court has power to make a disqualification order in certain cases where a company has been investigated under specific statutory provisions. An application for an order under s 8 may be made by the Secretary of State if it appears to him, from the results of the investigation ‘that it is expedient in the public interest that a disqualification order should be made against any person [who falls within a particular description].' It is clear that an application under s 6 or s 8 is only to be made when the Secretary of State is satisfied of the matters described in the passages which I have quoted.

Section 9 of the 1986 Act requires the court, in determining whether a person’s conduct as a director or shadow director makes him unfit to be concerned in the management of a company, to have regard ‘in particular’ to certain matters mentioned in the schedule to the Act. Sections 13 to 15 prescribe the consequences of acting in contravention of a disqualification order. To do so is an offence punishable by imprisonment or a fine or both. It also gives rise to personal liability for certain debts of any company in whose management the disqualified person became concerned. Under the joint operation of ss 1 and 17 the court has power to give leave to a disqualified person to do certain things which would otherwise be prohibited by the disqualification order made against him.

From these provisions the following conclusions emerge.

(1) The purpose of s 6 of the 1986 Act is to protect the public, and in particular potential creditors of companies, from losing money through companies becoming insolvent when the directors of those companies are people unfit to be concerned in the management of a company (see Re Sevenoaks Stationers (Retail) Ltd [1991] 3 All ER 578 at 583, [1991] Ch 164 at 176).

Page 507 of [1993] 4 All ER 499

(2) While a disqualification order is not in itself penal, it is clearly restrictive of the liberty of the person against whom it is made, and its contravention can have penal consequences under s 13 (see Secretary of State for Trade and Industry v Langridge [1991] 3 All ER 591 at 597, [1991] Ch 402 at 412).

(3) An important safeguard is provided for those against whom a disqualification order is sought under s 6 by the requirement, arising from the wording of s 7(1), that an application is only to be made where it appears to the Secretary of State that it is expedient in the public interest that a disqualification order should be made. The wording of s 8(1) provides an equivalent safeguard in relation to s 8.

(4) Nevertheless a disqualification order is to be made against a person under s 6 or s 8 only if, inter alia, the court is satisfied that the conduct of that person in relation to a particular company or companies ‘makes him unfit to be concerned in the management of a company’. This requirement is, in effect, a condition precedent to the making of a disqualification order (see Re Sevenoaks Stationers (Retail) Ltd [1991] 3 All ER 578 at 581, [1991] Ch 164 at 173; cf, in a different context, Re Fullard (decd) [1981] 2 All ER 796, [1982] Fam 49).

(5) In determining whether a person’s conduct makes him unfit to be concerned in the management of a company the court is required to have regard in particular to certain matters specified in the schedule to the Act.

(6) If a disqualification order is made the period of disqualification has to be determined by the court and by no one else, subject to a maximum of 15 years in all cases and a minimum of two years under s 6. While guidelines have been stated in the Sevenoaks case, these are no more than guidelines.

Having regard to conclusion (3), the Secretary of State can and should cause an application for a disqualification order under s 6 or s 8 to be abandoned if it ceases to appear to him that the making of a disqualification order against the respondent to that application is ‘expedient in the public interest’. I was told that the Secretary of State does in fact act upon this principle and I have no doubt that this is so. But the Secretary of State has no general power to compromise a claim for a disqualification order which he continues to regard as being expedient in the public interest. In particular he cannot accept an undertaking in lieu of a disqualification order, because that would not protect the public in the way that a disqualification order does by virtue of the consequences presented by ss 13 and 15. He cannot decide that particular conduct does or does not amount to unfitness, for it is the court, not the Secretary of State, which has to be satisfied of the relevant matters. He cannot agree that matters to which regard must be had by virtue of s 9(1) shall be left out of account. And he cannot bargain with a respondent concerning the length of any period of disqualification, for it is the court which has to decide this, subject to the statutory limits.

In disqualification proceedings, therefore, there is no scope for the parties to reach an agreement and then ask the court to embody their agreement in a consent order. The court itself has to be satisfied, after having regard to the prescribed matters and other facts which appear to be material, that the respondent is unfit to be concerned in the management of a company; and the court itself must decide the period of disqualification if it decides to make a disqualification order.

Does it follow from this that the court ought to insist upon a fully contested hearing in every case under the 1986 Act? Pragmatically it would seem that the answer ought to be in the negative. It would be unrealistic for the court to disregard any admission which one party may make in respect of factual

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contentions advanced by the opposite party. Moreover in practical terms the court has no means to control the way in which either party conducts its case, whether in respect of the scope and definition of the charges made or disputed or in respect of the evidence which is presented in order to support or rebut the charges.

It was suggested in argument that a number of analogous situations exist in which a court, while needing to be satisfied of certain matters and to exercise its own discretion, has been able, in appropriate cases, to dispense with a full hearing.

The most obvious of these, perhaps, is where an accused person pleads guilty in a criminal case. The whole purpose of the time honoured and thoroughly entrenched practice of requiring an accused person to plead guilty or not guilty at the time of arraignment is to decide whether or not there is to be a trial. If there is a plea of guilty to a particular charge there is no need for a trial upon that charge and the court proceeds to deal with sentence. Presumably the rationale of this is that at the initial stage what the court needs to know is whether the accused person is guilty or not and an admission, in the form of an unequivocal plea of guilty, is unambiguous evidence of guilt. It may be said that unfitness to be concerned in the management of a company ought to be as susceptible to a guilty plea as the elements of a criminal charge. But unfitness has a qualitative aspect to it which is not, I think, usually present in criminal charges. Moreover difficulty arises in criminal cases where there is a plea of guilty and the court needs to know, in order to assess the seriousness of the offence for purposes of sentence, which of two or more positive versions of the facts of the offence is to be accepted. The problem is discussed in Archbold’s Pleading, Evidence and Practice in Criminal Cases (44th edn, 1993) vol 1, paras 5-41–5-47. In some cases the court will require evidence to be called to deal with the matter (see R v Newton (1982) 4 Cr App R (S) 388).

Another analogy is that of applications under the Inheritance (Provision for Family and Dependants) Act 1975 and its predecessors. It is not a perfect analogy because when the parties to such an application are of full age they can usually compromise the application in any way they think fit, including a manner which produces a result which the court could not itself have directed under the 1975 Act. When minor or unborn persons are concerned a similar compromise may be implemented with the approval of the court, and in deciding whether to give or withhold its approval to a compromise the court will not be limited by what it could itself order under the 1975 Act.

There is, however, a further possibility, namely that the parties may wish the court to make an order under the 1975 Act of a kind which gives rise to little or no contention between them. In my experience this was not uncommon in the days when the Inland Revenue were not, or not always, willing to treat a variation of the terms of a will effected by agreement between the parties as being effective from the death of the deceased, but were usually bound by the terms of the legislation to treat a variation effected by order of the court within the jurisdiction conferred by legislation as being retrospective to the date of death. In such a case it would be usual for the plaintiff to open the case with moderation and to ask for provision which it was known that the defendant would not object to. The defendant would refrain from challenging the plaintiff’s evidence and would indicate that if the court were minded to make the further provision asked for by the plaintiff the defendant would not resist this. In a proper case the court was, and if the procedure were resorted to nowadays

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still would be, willing to make the order proposed. It would need to be satisfied that the will did not make reasonable provision for the plaintiff and that the proposed provision was itself reasonable, but, given the attitude of the parties which I have assumed, there would ordinarily be no difficulty about this. The jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975 and its predecessors is, however, one which has little or no element of public interest about it and it is exercisable for the benefit of deserving applicants rather than the protection of the public from mischief.

A third analogy comes from the field of competition law. Under s 21 of the Restrictive Trade Practices Act 1956 (now s 10 of the Restrictive Trade Practices Act 1976) a restriction accepted in pursuance of an agreement of a particular kind was deemed to be contrary to the public interest, and thus void and susceptible to injunctive relief, unless the court was satisfied of any one or more of specified sets of circumstances. In Re Net Book Agreement 1957 [1962] 3 All ER 751, [1962] 1 WLR 1347 certain restrictions in an agreement between members of the Publishers’ Association were, after a hearing lasting more than 20 days, held not to be contrary to the public interest on the ground that the court was satisfied of various of the specified circumstances in relation to each restriction. In Re Net Book Agreement 1957 (No 2) (1964) LR 4 RP 484 another agreement, containing virtually identical restrictions but made between different parties, came before the court. A procedure was followed under which (i) the Registrar of Restrictive Trading Agreements did not deliver an answer in response to the statement of case of those who were concerned to uphold the restrictions, (ii) evidence in support of the restrictions was given by a short affidavit verifying the statement of case and deposing to a few other relevant matters, on which the deponent was not cross-examined, and (iii) the matter was heard summarily, the registrar making no submissions against the making of the declaration which was asked for. In acceding to this procedure Mocatta J, giving the decision of the court, said (at 489):

‘Clearly the view of the registrar is important and we give much weight to it, but the court cannot rely exclusively on his view before it can be satisfied that the restrictions in the … agreement are not contrary to the public interest.’

After reading the affidavit the court made the declaration asked for, thus implicitly, if not expressly, indicating that it was satisfied of the relevant matters. A similar procedure was, to my knowledge, later followed in respect of substantially the same restrictions under the Resale Prices Act 1964 (see 47 Halsbury’s Laws (4th edn) para 240, n 10).

This, I think, is a fairly close analogy. The Restrictive Trade Practices Act 1956, like its successors, was passed to protect the public interest against anti-competitive agreements and it required the court to be satisfied of particular matters. The approach adopted by the Restrictive Practices Court shows how the court may be satisfied of those matters without requiring a full trial and without requiring the parties to contest every point. The fact that in Re Net Book Agreement (No 2) the relevant matters had already been established in other proceedings does not, in my judgment, qualify the effect of the decision so far as jurisdiction is concerned. It merely resulted in it being easy for the court to be satisfied of the relevant matters by evidence which was little more than formal.

No example was called to my attention of a jurisdiction in which any court has held that there must be a full trial of all potentially relevant issues, regardless of

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any agreement or admission of material facts. I myself can think of none. In my judgment, the court does have jurisdiction to deal with an application under the 1986 Act by a summary procedure of the kind which was proposed in this case.

I make four further observations. First, as the court has to be satisfied of the unfitness of the person against whom it is asked to make an order, there must be presented to the court some evidence which establishes unfitness. A mere assertion of no evidential value, or a mere admission which is unsupported by evidence, would not by itself suffice. But if there is evidence which, if accepted, will establish a particular fact, the court may, in appropriate circumstances, be prepared to accept that evidence if it is not challenged by the party whose duty or interest it is to challenge it. I emphasise the word ‘may’. Clearly the court is not bound to accept unchallenged or admitted facts about which it is not, in all the circumstances, satisfied.

Secondly, in deciding whether or not to accept a proposal that an application shall be dealt with in a summary way, the court needs to consider not only the unchallenged or admitted evidence but also the general scope of the disputed evidence. The reason for this is that, although the unchallenged or admitted evidence may be enough to satisfy the court as to unfitness, the other evidence may be such that, if it were accepted, it would substantially affect the seriousness of the unfitness. This might take the case out of one of the lower brackets suggested by the Court of Appeal in Re Sevenoaks Stationers (Retail) Ltd [1991] 3 All ER 578, [1991] Ch 164 into a higher bracket, or it might move the case from one end of a particular bracket to the other. While the court cannot, of course, fully appraise the disputed evidence under the summary procedure, it will need to consider its potential impact. If this will or may be substantial the court will, no doubt, decline to deal with the matter summarily and will direct a full hearing.

Thirdly, and by parity of reasoning, it is possible (although not perhaps all that likely, given the premise that the respondents will, in substance, be accepting their own unfitness) that the court will not be satisfied of such unfitness on the basis of the agreed or unchallenged evidence. If the court considers that the disputed evidence would not, even if accepted, tip the scales in favour of a finding of unfitness it will, no doubt, dismiss the application under the summary procedure. When the position is less clear it will be necessary for directions to be given in order to lead to a full hearing.

Fourthly, there is inherent in the procedure the possibility that a case which the parties hoped to have dealt with summarily will be adjourned for a full hearing. If this happens, each party may properly wish not only not to be bound by admissions or concessions made in anticipation of summary disposal but to conceal from the court which conducts the full hearing the fact that such admissions or concessions were made or proposed. It may be that there ought to be implied into any negotiations which take place a term that this is so, or that the conventional ‘without prejudice’ rubric would cover the matter. But in order to make certain it seems to me that a party who desires that relevant statements shall only be referred to or relied upon in connection with a summary hearing and shall not be referred to or relied upon if there has to be a full hearing, would be wise to protect his position by express words. Having regard to the reasoning in Cutts v Head [1984] 1 All ER 597, [1984] Ch 290 I do not see why this should not be effective if the chosen form of words is apt.

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(2) Are the present cases appropriate to be dealt with in accordance with the summary procedure?

I am satisfied that the evidence establishes all the facts which I have previously narrated as being undisputed, agreed or facts which the respondents are content for me to assume. This is so even in respect of facts which the respondents might have wished to challenge at a full hearing. I take the view that, in the absence of such a challenge, I am entitled to accept the evidence which supports these facts at its face value, and I do accept it.

I am satisfied also that, on the basis of these facts, the conduct of Mr Wilson and Mr Hayes as directors of the companies which I have mentioned makes them unfit to be concerned in the management of a company. I refer in particular to the failure to file annual returns and accounts; the failure to keep adequate financial and other records; the consequential failure to appreciate the true financial position of Carecraft until just before it went into liquidation; the failure to cause Carecraft to make returns in respect of paye and national insurance; and the non-payment of Crown debts in contrast to the payment of suppliers and wages, which is indicative of a tendency to pay creditors who were pressing for payment, or were in a position to exert pressure for payment, and to use the money due to other creditors as additional working capital. I have not attempted to arrange these factors in order of importance.

So far as the evidence which has been challenged is concerned, there is no need to rely on this in order to establish unfitness. The undisputed evidence, which I accept as I have said, establishes unfitness which comes within the lowest of the brackets referred to in Re Sevenoaks Stationers (Retail) Ltd [1991] 3 All ER 578 at 582, [1991] Ch 164 at 174. In other words, although disqualification is mandatory, the cases before me are, relatively, not very serious. In the absence of mitigation, which I shall come to, I would have thought that a three year period of disqualification in each case would have been appropriate on the basis of this evidence.

Would the disputed evidence, if proved, cause a different view to be taken? This evidence relates mainly to the state of knowledge of Mr Wilson and Mr Hayes respectively and to matters raised by each of them in order to shift a greater degree of responsibility onto the other in partial exoneration of himself. There could be no question of this evidence, if proved, taking the case into the highest of the Sevenoaks case brackets, namely periods over ten years which ‘should be reserved for particularly serious cases’. Moreover I accept the view of Mr Charles for the Official Receiver that it would not take either case into the middle bracket of from six to ten years which ‘should apply for serious cases which do not merit the top bracket’. The disputed evidence, if accepted, would in my judgment at most raise the period of disqualification (subject to mitigation) to perhaps four years, or lead to a longer period of disqualification (of not more than four years) in one case and a shorter period in the other.

I take the view that the disputed evidence does not have such a significant potential impact on the seriousness of the conduct which I have to appraise as to require there to be a full hearing at which it can be evaluated. Therefore its existence does not, in my judgment, make it inappropriate to deal with these cases on the summary basis proposed.

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(3) Am I satisfied both that a disqualification order must be made in each case and that it shall be for no longer than two years?

The finding of unfitness which I have made means that a disqualification order must be made for at least two years. As I have indicated, my starting point, subject to mitigation, was disqualification for three years in each case.

On behalf of Mr Wilson, Miss Shekerdemian asked me to take account of his youth and background. He left school at the age of 16. He is a builder, with no qualifications. He had no experience of running a limited company when he incorporated Carecraft at the age of 25. There is no suggestion that he acted dishonestly or for his own benefit. His remuneration from Carecraft was modest, beginning at £3,500 in 1984–85 and rising to only a little over £10,000 in 1986–87. He received no remuneration from any of the other companies. He lent substantial sums to the companies all of which have been lost. He has also had to pay over £100,000 under his bank guarantee. He should be given credit for what is, in effect, a plea of guilty. The fact that this application has been hanging over his head for an unusually long time, largely due to the ‘ten-day notice point’ which was attributable to an error or delay in the office of the Secretary of State, should also be taken into account. Miss Shekerdemian also asked me to accept as an explanation of the want of financial records, although not an exoneration from responsibility for it, the fact that Mr Wilson had delegated responsibility for these to Mr Hayes.

I found that all these factors, except perhaps the last, carried some weight. In all the circumstances I took the view that the period of disqualification in respect of Mr Wilson should be two years.

On behalf of Mr Hayes, Mr Kaye QC pointed out that he too is young, having been born in 1956, and without any real experience as a company director or any experience at all as a builder. He became a director on a part-time basis and was faced with a situation in which inadequate records had been kept. In order to remedy this he became a full-time director after about nine months and, within the next seven months, brought the companies’ books up to date, despite various difficulties, including a lack of input and assistance from Mr Wilson. When he realised the true position of the companies he called in expert assistance and, since the liquidation, he has co-operated fully with the Official Receiver. He received little benefit from the companies while they were trading, and he has had to pay £30,000 under his guarantee. He will also have to pay at least some of the costs of these proceedings. He is a chartered accountant, so that the stigma of a finding of unfitness will be considerable, regardless of the period of disqualification. He may be further penalised in disciplinary proceedings brought by his professional body. Like Mr Wilson he should be given credit for a guilty plea and the fact that these proceedings have been pending for a long time should be taken into account.

I found that all these points of mitigation carried some weight. In the case of Mr Hayes too I took the view that the period of disqualification should be two years.

Orders accordingly.

Jacqueline Metcalfe  Barrister.

R v Nadir

R v Turner

[1993] 4 All ER 513

Categories:        CRIMINAL; Criminal Evidence        

Court:        COURT OF APPEAL, CRIMINAL DIVISION        

Lord(s):        LORD TAYLOR OF GOSFORTH CJ, OGNALL AND SEDLEY JJ        

Hearing Date(s):        8 JUNE, 1 JULY 1993        

Criminal evidence – Prosecution evidence – Use of defence case statements – Re-interviewing witnesses – Re-interviewing witnesses after service of defence case statements – Serious Fraud Office – Conduct of trial – Whether judge having power to prevent Serious Fraud Office re-interviewing witnesses after receipt of defence case statement – Criminal Justice Act 1987, s 9(4)(5).

In December 1990 and November 1991 N and T were respectively charged with theft and false accounting in relation to a company. In February 1992 the charges against both defendants were transferred to the Crown Court pursuant to s 4 of the Criminal Justice Act 1987. On 22 June 1992 the prosecution was ordered by the judge to serve a case statement pursuant to s 9(4)a of the 1987 Act. That statement was served on 31 July. Defence statements were served on behalf of the defendants on 7 September and 14 December pursuant to orders of the judge made under s 9(5). When the Serious Fraud Office served further evidence on 5 March 1993, it became apparent that a number of witnesses whose statements had already been served had been re-interviewed by the Serious Fraud Office following delivery of the defence statements. Defence counsel objected to the prosecution approaching existing witnesses for further statements on matters arising from the defence statements. The judge ruled that the prosecution could not make use of defence statements by re-interviewing prosecution witnesses and asking them further questions arising out of defence statements unless (a) the prosecution drew up a list of questions which they wish to put to their witnesses, (b) the prosecution then applied to the court for approval to ask the witnesses those questions and (c) the court, after hearing submissions from the defence as to whether such questions should be asked, ruled that they could in fact be asked. The Serious Fraud Office appealed against the judge’s order.

Held – The judge in a serious fraud trial had no power to limit or supervise the Serious Fraud Office’s access to witnesses after service of a case statement by the defence pursuant to s 9(5) of the 1987 Act since the judge’s inherent power to control the trial related only to the admission of evidence and the conduct of the trial, not the investigating process, which was a matter for the Director of the Serious Fraud Office in the execution of his statutory duties. Accordingly, once a defence statement had been served the Serious Fraud Office could re-interview witnesses for further statements on matters arising from the

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defence statement. Accordingly, the appeal would be allowed and the judge’s order quashed (see p 516 j to p 517 d g to j and p 518 c, post).

Notes

For the judge’s powers at preparatory hearing, see 11(2) Halsbury’s Laws (4th edn reissue) para 951.

For the Criminal Justice Act 1987, s 9, see 12 Halsbury’s Statutes (4th edn) (1989 reissue) 1084.

Cases cited in argument

R v Gunawardena [1990] 2 All ER 477, [1990] 1 WLR 703, CA.

R v Mayhew (18 November 1991, unreported), CA.

Saunders, Re (1990) Times, 8 February, CA.

Interlocutory application

The Serious Fraud Squad applied under s 9(11) of the Criminal Justice Act 1987 for leave to appeal against a ruling made by Tucker J in the Central Criminal Court on 9 March 1993 in the course of preparatory hearings arising out of the trial of Asil Nadir and John Turner for serious fraud whereby the judge ruled that the prosecution were not entitled to make use of a defence case statement by re-interviewing prosecution witnesses and asking them further questions arising out of the case statement unless first: (a) the prosecution drew up a list of questions which they wished to put to their witnesses; (b) the prosecution then applied to the court for approval of such questions to be asked of the witnesses; (c) the court heard submissions from the defence as to whether such questions should be asked; and (d) the court ruled that such questions could be asked of existing witnesses. The application was treated as the appeal. The facts are set out in the judgment of the court.

Robert Owen QC, David Calvert-Smith and Simon Browne-Wilkinson (instructed by the Serious Fraud Office) for the Crown.

Michael Hopmeier and Michelle Stevens-Hoare (instructed by Hunt & Hunt & Houghtons, Romford) for the defendant, Turner.

The defendant Nadir did not appear.

1 July 1993. The following judgment of the court was delivered.

At the conclusion of the argument the court announced that the appeal would be allowed for reasons to be given later.

LORD TAYLOR OF GOSFORTH CJ. This is an application by the Serious Fraud Office as prosecutor for an extension of time of nine days and for leave to appeal against a ruling made by Tucker J at the Central Criminal Court on 9 March 1993 in the course of a preparatory hearing in the trial of Asil Nadir and John Turner for theft and false accounting in relation to Polly Peck International plc (PPI).

The relevant provisions of the Criminal Justice Act 1987 and of rules made thereunder are designed to achieve expedition and efficient management of complex fraud trials. It is therefore important that time limits prescribed in the legislation should be met. In particular, as we indicated in the course of the hearing, the applicant, being charged with the responsibility of investigating and prosecuting such offences should set an example by observing the rules

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strictly. Nevertheless, having regard to the representations made on behalf of the applicant and to the general importance of the issue raised, we have granted the necessary extension of time in the present case and granted leave.

On 16 December 1990 Mr Nadir was charged with a number of offences of theft. On 6 November 1991 Mr Turner was charged with a number of offences of false accounting. On 7 February 1992 the charges against both defendants were transferred to the Crown Court pursuant to s 4 of the 1987 Act. The proposed trial indictment contains 13 specimen counts of theft against Mr Nadir and two counts of false accounting against Mr Turner.

Preparatory hearings have been held on a number of dates since 22 June 1992. On that date, the prosecution were ordered by the learned judge to serve a case statement pursuant to s 9(4) of the 1987 Act. The statement was served on 31 July 1992. Pursuant to orders of the learned judge made on 7 September and 14 December 1992 respectively, a defence statement was served on behalf of Mr Nadir on 5 November 1992 and on behalf of Mr Turner on 21 February 1993.

In the summer of 1992 the learned judge became concerned about the number of notices of further evidence being served by the prosecution. Accordingly, he ruled that they should not serve more without his leave. The practice was therefore adopted by the applicant, when wishing to serve further evidence on the defence, to do so subject to leave so that defence lawyers would be in a position to argue the matter when leave was sought.

A preparatory hearing was due on 9 March 1993. The applicant wished to seek leave to serve a substantial quantity of further evidence.

When, pursuant to the practice described above, the applicant served the further evidence on 5 March, it became apparent that a number of witnesses whose statements were already served had been re-interviewed following delivery of the defence case statement.

On 9 March, before the learned judge, counsel for Mr Nadir took objection to the prosecution approaching existing witnesses for further statements on matters arising from the defence case statement. After hearing argument, the learned judge ruled that the prosecution are not entitled to make use of a defence case statement by re-interviewing prosecution witnesses and asking them further questions arising out of the case statements unless first: (a) the prosecution has drawn up a list of questions which they wish to put to their witnesses; (b) the prosecution has then applied to the court for approval of such questions to be asked of the witnesses; (c) the court has heard submissions from the defence as to whether such questions should be asked; and (d) the court has ruled that such questions can be asked of existing witnesses.

In a supplementary ruling the learned judge held that the prosecution are entitled to interview new witnesses on matters arising out of the defence case statement without leave of the court.

The Serious Fraud Office, as prosecutor, appeals against the judge’s order. Mr Nadir has not appeared on this appeal by counsel or in person. However, Mr Hopmeier, on behalf of the co-defendant Mr Turner, has appeared to resist the appeal.

Before Mr Owen QC for the appellant opened the appeal Mr Hopmeier raised a preliminary point of jurisdiction. The provisions he relies upon are all in s 9 of the 1987 Act as follows:

‘(1) At the preparatory hearing the judge may exercise any of the powers specified in this section …

(3) He may determine … (b) any question as to the admissibility of evidence; and (c) any other question of law relating to the case …

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(11) An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or of the Court of Appeal.’

The argument was that the issue sought to be raised by the appellant does not fall within s 9(3)(b) or (c). Accordingly, there is no right of appeal.

Clearly, para (b) does not apply since there is no question as to the admissibility of evidence. However, different considerations apply in our judgment to the application of para (c).

The thrust of this appeal is that the learned judge had no power in law to give the ruling and make the order he did. When Mr Hopmeier was asked in the course of argument whether that did not raise a ‘question of law relating to the case’, he decided, rightly in our view, not to pursue his argument as to jurisdiction. We have no doubt that an appeal does lie, subject to leave, on the issue raised by the appellant.

Mr Owen submits that the Director of the Serious Fraud Office has a duty to discharge his functions under the superintendence of the Attorney General (s 1(2) of the 1987 Act). Those functions include the exercise of his powers under s 1(3) to investigate any suspected offence appearing to him on reasonable grounds to involve serious or complex fraud. The judge has no power, says Mr Owen, to curtail the Director’s powers or to circumscribe the Director’s exercise of them. Alternatively, if there is any such power, the learned judge here exercised it erroneously.

It is common ground that the 1987 Act itself gives no power to the judge to limit or supervise the Director’s access to witnesses. However, Mr Hopmeier submits that the judge’s power to make the order he did derives from the inherent power of a judge to control the trial. Section 8(1) of the 1987 Act provides that if a judge orders a preparatory hearing, the trial shall begin with that hearing. So the trial was in being when the learned judge made his order.

In the course of his ruling, the learned judge said:

‘In my view, the paramount consideration is that defendants should be encouraged to make full and meaningful disclosure. They should not be inhibited by the danger of witnesses being forewarned of the questions they may have to face in cross-examination at the trial. It is important that the witnesses’ demeanour at the trial, and their response to cross-examination, should not be undermined. It seems to me that it is impossible to lay down hard and fast rules. There may be cases where it is necessary and desirable to interview witnesses on questions of fact. Where this is thought to be so, it would, in my opinion, be better for the prosecution to draw up a list of questions which they desire to put to their witnesses, and to seek the judge’s approval to that course. The judge would invite comments from the defence before deciding whether or not to grant leave. However, where questions as to the credibility of witnesses arise, it will be rarely, if ever, be appropriate for this course to be taken. Nothing should take place which would alert the witnesses to the general nature of the defence case after the case statement has been served.’

Although the learned judge expressed himself in that passage only in terms of what ‘it would … be better’ for the prosecution to do, he went on to rule that in future that is what they should do.

Mr Hopmeier was unable to refer to any authority justifying the course the learned judge took. In our judgment he had no power to take it. Clearly the

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judge has a duty to determine what evidence may go before the jury. If he considers evidence the Crown wish to lead would have an adverse effect on the fairness of the trial, he can exclude it under s 78 of the Police and Criminal Evidence Act 1984 (subject to s 3(2) of the 1987 Act). He also has a general discretion to exclude evidence which was preserved by s 82(3) of the 1984 Act and which would allow the judge to exclude evidence he considers more prejudicial than probative. But his powers relate to the admission of evidence and conduct of the trial, not to the investigation process. We know of no judicial power to forbid the prosecution to re-interview witnesses, or to re-interview them only under a procedure such as that imposed here. The Director of the Serious Fraud Office is responsible to the Attorney General; he holds a statutory office and has statutory powers and duties to investigate suspected or alleged serious fraud as he thinks fit. If he were to err in his conduct of an investigation, the Attorney General would be answerable to Parliament for such error and the trial judge would have power to exclude evidence as indicated above.

The learned judge’s view that nothing should take place which would alert the witnesses (ie the prosecution witnesses) to the general nature of the defence after the case statement has been served was supported by Mr Hopmeier in argument. In our judgment, however, it is misconceived. It amounts to saying that the prosecution have to disclose their witness statements and the nature of their case so that the defence are not taken by surprise, but the defence are entitled to surprise the prosecution witnesses. One of the main purposes of the procedure introduced by the 1987 Act was to narrow the issues and avoid either side being ambushed at trial.

Two further observations of the learned judge help to demonstrate the misconception. In his supplementary ruling, he sanctioned the use of the defence case statement in taking proofs from fresh witnesses for the prosecution. We can see no logic in keeping existing witnesses in the dark about the defendant’s contentions so that ‘the witnesses’ demeanour at the trial, and their response to cross-examination, should not be undermined’, but allowing fresh witnesses to be forewarned. We understand the learned judge’s concern that the defence should be encouraged to make full disclosure, and his worry that if information contained in their case statements can be put to prosecution witnesses, there may be an incentive to keep the defence statement less full and helpful than it might be. However, that consideration is, in our view, outweighed by the clear purpose of the 1987 Act to facilitate preparation for trial, to avoid surprise and to expedite proceedings. It is also conceivable in some cases that disclosure may lead to the withdrawal of a prosecution which the defence case statement has shaken; but for this to happen the prosecution may well need first to re-interview their material witnesses. Certainly, there would seem to be no ground for distinguishing between witnesses who have already given statements and those who have not.

It may be entirely fortuitous as to whether a witness has been interviewed and proofed before the defence case statement is served.

Secondly, the learned judge said in his ruling:

‘Nothing I have said in this ruling should prevent the prosecution from asking any questions that they feel fit of their witnesses after they have been sworn and started their evidence in the trial, but for the reasons I have outlined, in my opinion, it is inappropriate to ask witnesses beforehand any questions based on the case statements without the judge’s prior approval.’

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As Mr Owen pointed out, if questions were to be asked of a prosecution witness after he has been sworn so as to elicit factual evidence not previously served on the defence, there would be a justifiable complaint that notice had not been given.

On purely practical grounds, the order which the learned judge purported to make would, in any event, create difficulty and protract the proceedings. There would have to be a hearing before the judge at which the prosecution’s list of questions would be considered. Should leave be given to ask those questions, they may well produce answers which themselves would require the prosecution to compile a further list of follow-up questions for submission to the learned judge at another hearing.

For all these reasons, of principle and practice, we are clearly of the view that the order forming the subject of this appeal ought not to have been made. Accordingly, we quash it.

Application granted. Appeal allowed.

N P Metcalfe Esq  Barrister.

Re T (a minor) (child: representation)

[1993] 4 All ER 518

Categories:        FAMILY; Family Proceedings, Children        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        SIR THOMAS BINGHAM MR, STAUGHTON AND WAITE LJJ        

Hearing Date(s):        27, 28 APRIL, 6 MAY 1993        

Ward of court – Practice – Parties to proceedings – Minor – Minor proceeding without next friend or guardian ad litem – Child applying in family proceedings for residence order authorising her to live with aunt – Child’s adoptive parents opposing application – Child instructing solicitor to act for her – Solicitor considering child able, having regard to her understanding, to instruct him and accepting her instructions – Application by adoptive parents for leave to make child ward of court – Judge making child ward of court as means of appointing guardian ad litem – Whether child entitled to proceed without next friend or guardian ad litem – Whether wardship jurisdiction should be invoked to protect child – Whether guardian ad litem can be imposed against child’s will – Family Proceedings Rules 1991, r 9.2A(1)(b)(i).

Family proceedings – Parties to proceedings – Minor – Minor proceeding without next friend or guardian ad litem – Minor entitled to proceed without next friend or guardian ad litem if solicitor considers minor is able, having regard to minor’s understanding, to instruct him– Whether solicitor’s view of minor’s ability and understanding conclusive – Family Proceedings Rules 1991, r 9.2A(1)(b)(i)(10).

The appellant, T, who was aged 13, had been separated from her natural family at the time of her adoption at the age of 7. She wished, against the opposition of the adoptive couple who were her lawful parents, to resume her links and eventually to live with her natural family and obtained leave to apply for a residence order under the Children Act 1989 authorising her to live with an aunt who was the sister of her natural mother. T consulted a solicitor who, after satisfying himself that T had sufficient understanding and was capable of giving

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instructions, accepted her instructions pursuant to r 9.2A(1)a of the Family Proceedings Rules 1991, which permitted a minor who had ‘sufficient understanding’ to instruct a solicitor to bring or defend proceedings. The application then proceeded with T as the applicant in her own right and her adoptive parents, who strongly opposed it, as the respondents. While the application was still at a preliminary stage the adoptive parents applied successfully for leave to institute wardship proceedings against T, her natural aunt and the local authority and obtained orders for confirmation of the wardship, consolidation of the two sets of proceedings and the appointment of the Official Solicitor as T’s guardian ad litem in the wardship with the usual functions of reporting and representation and the duty of obtaining any necessary independent medical advice. The judge took the view that it was in T’s best interests to have a guardian ad litem and that since wardship was the only way that could be achieved T should be made a ward of court. T appealed from the judge’s orders, contending that, once she had satisfied a solicitor that she had the required degree of understanding to give him instructions, she was entitled to make her own judgment as to what those instructions should be and that that right ought not to be frustrated by making her a defendant to wardship proceedings in which precisely the same issues arose but in which a guardian ad litem could be imposed on her.

Held – (1) The court’s discretion to permit wardship proceedings was subject to the clear duty under the 1989 Act to permit recourse to wardship only when it was apparent to the judge that the question which the court was determining in regard to the minor’s upbringing or property could not be resolved under the statutory procedures in Pt II of that Act in a way which secured the best interests of the child, or where the minor’s person was in a state of jeopardy from which he could only be protected by giving him the status of a ward of court, or where the court’s functions needed to be secured from effects of external influences (eg intrusive publicity) which were potentially injurious to the child and wardship would be a more effective deterrent than the ordinary sanctions of contempt of court. Wardship was subject to r 9.2A of the 1991 rules, with the result that minors could engage in wardship proceedings without a next friend or guardian ad litem with the same leave, and subject to the same conditions, as applied to other forms of family proceedings (see p 524 b to f and p 532 c, post).

(2) The judge had been wrong to invoke wardship proceedings as a means of appointing a guardian ad litem for T, who had initiated an application for a residence order to enable her to leave her adoptive parents and return to her natural family and had instructed a solicitor in her own right under r 9.2A(1)(b) of the 1991 rules for that purpose. T had a right under r 9.2A(1)(b), provided the conditions in the rule were satisfied, to bring proceedings herself without a next friend or guardian ad litem and the court had no power to impose a next friend or guardian ad litem upon her against her will. Furthermore, wardship would not secure for T or for the adoptive parents any advantage not available in

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ordinary family proceedings under Pt II of the 1989 Act. The appeal would therefore be allowed and the proceedings would be permitted to continue solely as an application by T for a residence order (see p 528 h to j and p 532 a c, post).

Per curiam. (1) The question of a minor’s ability to give instructions under r 9.2A(1)(b)(i) and (10)b of the 1991 rules is not a matter exclusively for the solicitor whom the minor is instructing to decide: the court, of its own motion or on the application of another party, has the ultimate right to decide whether a minor who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor (see p 530 e to g and p 532 f to h, post).

(2) The option of involving the Official Solicitor as an amicus curiae in cases under the 1989 Act is always available to the court, but his services in that capacity should be resorted to sparingly, since he is unlikely to be able to assist the court to the same extent as in cases where he is involved as next friend or guardian ad litem (see p 531 f g and p 532 c, post).

Notes

For residence and other orders with respect to children in family proceedings, see 5(2) Halsbury’s Laws (4th edn reissue) paras 770–780.

For wardship generally, see ibid paras 760–767, and for cases on the subject, see 28(3) Digest (2nd reissue) 299–305, 2836–2878.

For the Children’s Act 1989, see 6 Halsbury’s Statutes (4th edn) (1992 reissue) 387.

Cases referred to in judgments

AD (a minor), Re [1993] Fam Law 43.

Gaskill v Gaskill [1921] P 425, [1921] All ER Rep 365.

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, HL.

H (a minor), Re (16 March 1993, unreported), Fam D.

Keyes v Keyes and Gray [1921] P 204.

S (a minor) (independent representation), Re [1993] 3 All ER 36, [1993] Fam 263, [1993] 2 WLR 801, CA.

W (a minor) (medical treatment), Re [1992] 4 All ER 627, [1993] Fam 64, [1992] 3 WLR 758, CA.

Cases also cited or referred to in skeleton arguments

A and ors (minors) (residence order), Re [1992] 3 All ER 872, [1992] Fam 182, CA.

B (JA) (an infant), Re [1965] 2 All ER 168, [1965] Ch 1112.

E (SA) (a minor) (wardship), Re [1984] 1 All ER 289, [1984] 1 WLR 156, HL.

H (a minor) (care proceedings: child’s wishes), Re [1993] 1 FLR 440.

HG (specific issue order: sterilisation), Re [1993] 1 FLR 587.

Harbin v Masterman [1896] 1 Ch 351, [1895–9] All ER Rep 695, CA.

L, Re [1968] 1 All ER 20, [1968] P 119, CA.

R (a minor) (wardship: medical treatment), Re [1991] 4 All ER 177, [1992] Fam 11, CA.

Richards v Richards [1983] 2 All ER 807, [1984] AC 174, HL.

South Glamorgan CC v W and B [1993] 1 FLR 574.

Page 521 of [1993] 4 All ER 518

Interlocutory appeal

By notice of appeal dated 22 February 1993 T, a girl aged 13, appealed from the order of Thorpe J dated 28 January 1993 whereby he ordered, inter alia, on T’s adoptive parents, Mr and Mrs T, undertaking to issue by 4 pm on Friday, 29 January 1993 an originating summons with a view to wardship of T, that (1) on the issue of the originating summons the proposed wardship should thereupon by confirmed without further application, (2) the Official Solicitor should, subject to his consent, be appointed T’s guardian ad litem in the wardship and (3) T’s application dated 21 October 1992 for a residence order under s 8 of the Children Act 1989 authorising her to live with an aunt should be consolidated with the wardship proceedings with a view to the wardship proceedings being the lead matter. The facts are set out in the judgment of Waite LJ.

Judith Parker QC and Roderic Wood QC (instructed by David Burrows, Bristol) for T.

Mark Evans (instructed by Winterbothams, Stroud) for the adoptive parents.

E James Holman QC (instructed by the Official Solicitor) for the guardian ad litem.

Cur adv vult

6 May 1993. The following judgments were delivered.

WAITE LJ (giving the first judgment at the invitation of Sir Thomas Bingham MR). This is another appeal arising from the changes introduced by the Children Act 1989 and subsidiary legislation into the previous rules of procedural disability preventing children from bringing or defending proceedings in their own right, and making it obligatory for their case to be maintained by a next friend when they were making a claim and a guardian ad litem when they were defending one. In the recent case of Re S (a minor) (independent representation) [1993] 3 All ER 36, [1993] Fam 263 this court was called upon to consider the rights of a minor who had been made respondent to private law family proceedings between his parents to discharge his guardian ad litem. This present appeal concerns the rights of a child who wishes to initiate family proceedings against her parents without the intervention of a next friend.

The appellant, T, is aged 13. She is an adopted child, who wishes, against the opposition of the adoptive couple who are now her lawful parents, to resume her links, and eventually to go and live, with members of the natural family from which she became separated at the time of her adoption at the age of 7. She obtained leave to make an application for a residence order authorising her to live with an aunt, who is the sister of her natural father. In the ordinary way she would not have been able to pursue that application in her own right: it could only have been maintained by a next friend on her behalf. Rules of court enacted under the 1989 Act do, however, authorise a minor to bring or defend certain family proceedings without the intervention of a next friend or guardian ad litem in certain specified cases. One of them is that a solicitor should have obtained and accepted the child’s instructions to act for him or her, after satisfying himself that the minor is capable of giving him instructions for that purpose. T consulted a solicitor, who was satisfied that he could accept T’s instructions on that footing, and the application therefore

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proceeded with T as applicant in her own right and her adoptive parents (who strongly opposed it) as respondents.

While T’s application was still at a preliminary stage, her adoptive parents applied successfully for leave to institute wardship proceedings against T herself, her natural aunt, and the local authority. They obtained orders for confirmation of the wardship, consolidation of the two sets of proceedings, and the appointment of the Official Solicitor as T’s guardian ad litem in the wardship with the usual functions of reporting and representation and the duty of obtaining any necessary independent medical advice.

T now appeals against those orders, contending that once she has satisfied a solicitor that she has the required degree of understanding to give him instructions, she is entitled to make her own judgment as to what those instructions are to be. That right is not to be frustrated by making her a defendant to other proceedings in which precisely the same issues arise, but in which it is claimed (wrongly as T asserts) that a guardian ad litem can be imposed upon her.

The case is therefore one in which (as in Re S (a minor) (independent repre-sentation)) the court is called upon to consider the governing provisions of rule and statute in the light of the underlying objective of the Children Act 1989 that children should have attention paid to their views, but be spared the risk of making, through lack of insight, understanding or maturity, choices which accord with their wishes but are in conflict with their genuine interests.

It will be convenient to consider those provisions under separate heads as follows.

1. The child as applicant

An application for a residence order (or one of the other orders for which provision is made in s 8(1) of the 1989 Act) may be made by the child concerned himself, but only with the leave of the court. Section 10(8) provides:

‘Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.’

The court, in other words, must be judicially satisfied by appropriate evidence that the child has the necessary understanding. I refer later to the precise implications of that requirement.

2. The child as a party generally

Family proceedings are in general subject to the ordinary rules of disability, applying to all civil proceedings, which prevent a minor from bringing or defending any proceedings except by a next friend or guardian ad litem (as the case may be): see RSC Ord 80, r 2 and the Family Proceedings Rules 1991, SI 1991/1247, r 9.2. A next friend or guardian does not in those circumstances act merely as the child’s representative. He has an independent function to perform, and must act in what he believes to be the minor’s best interests, even if that should involve acting in contravention of the wishes of a minor who is old enough to articulate views of his own: see the authorities cited in the notes to RSC Ord 80, r 2 in The Supreme Court Practice 1993 vol 1, paras 80/2/1–80/2/16. Those functions can be performed by anyone who has no interest in the proceedings adverse to those of the child: there is no need for a next friend or guardian ad litem in private law proceedings to be professionally qualified, or

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even a member of the panel of guardians recruited to discharge the public law functions established by s 41 of the Children Act 1989. In practice, however, problems of representation and legal aid make it difficult for a lay person to act, and in the majority of private law cases the child’s next friend or guardian ad litem will be the Official Solicitor, whose department has unrivalled experience in dealing with the problems to which such proceedings are apt to give rise. In function, however, he does not differ at all from any other next friend or guardian ad litem. He owes a loyalty which has by its very nature to be divided: to the child whose views he must fully and fairly represent; and to the court, which it is his duty to assist in achieving the overriding or paramount objective of promoting the child’s best interests.

An exception to that long-established principle has been introduced, uniquely, into family law by r 9.2A of the 1991 rules (as amended by SI 1992/456) in certain specified instances. Those are: (1) where the court has given leave at the outset for a minor to begin or defend proceedings without a next friend or guardian ad litem. Such leave is only to be granted if the court considers that ‘the minor concerned has sufficient understanding to participate as a party in the proceedings … without a next friend or guardian ad litem’ (r 9.2A(1)(a) and (6)). (2) Where a minor has a next friend or guardian ad litem in proceedings that are already on foot and applies successfully for leave to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem. Leave for that purpose is only to be granted if the court reaches the same conclusion as in case (1) (r 9.2A(4) and (6)). (3) Where a solicitor has accepted instructions from the minor to act in the proceedings, and where that solicitor ‘considers that the minor is able, having regard to his understanding, to give instructions in relation to the proceedings’ (r 9.2A(1)(b)(i) and (ii)).

3. The child’s ‘understanding’

This is a factor expressly to be considered by the court when considering whether to grant leave to apply under s 10(8) of the 1989 Act, and also when considering whether to grant leave to initiate or continue proceedings without a next friend or guardian ad litem under cases (1) and (2) above. It is also a factor expressly to be considered by the solicitor in considering whether to accept instructions in case (3). No definition of ‘understanding’ is attempted by the 1989 Act or the 1991 rules, but guidance was offered by this court in Re S (a minor) (independent representation) [1993] 3 All ER 36 at 43–44, [1993] Fam 263 at 276, where Sir Thomas Bingham MR said:

‘Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.’

One of the issues strongly debated in the current appeal (and with which I shall be dealing later) is the question to what extent, if at all, the minor’s ‘understanding’ in cases where the child is proposing to instruct his own solicitor is a matter for consideration by the court, or whether it is exclusively a matter for assessment by the solicitor who is deciding whether or not to accept instructions.

Page 524 of [1993] 4 All ER 518

4. The status of wardship

The scheme of the 1989 Act is to establish a statutory code for both the private and public law field. It implements proposals in the Law Commission report, Family Law: Review of Child Law: Guardianship and Custody (Law Com no 172), of which a major objective was stated to be the reduction of the need to resort to the wardship jurisdiction of the High Court (para 4.35). ‘Family proceedings’ is expressed by s 8(3) of the 1989 Act to include proceedings under the jurisdiction of the High Court in relation to children, and wardship proceedings are also comprehended in the definition of ‘family proceedings’ in r 1.2(1) of the 1991 rules. Though wardship survives as an independent jurisdiction (and was clearly intended to do so), it is now made subject to the provisions of r 9.2A, with the result that minors may engage in wardship proceedings without a next friend or guardian ad litem with the same leave, and subject to the same conditions, as apply to other forms of ‘family proceedings’.

The jurisdiction is not only circumscribed procedurally. The court’s undoubted discretion to allow wardship proceedings to go forward in a suitable case is subject to their clear duty, in loyalty to the scheme and purpose of the Children Act legislation, to permit recourse to wardship only when it becomes apparent to the judge in any particular case that the question which the court is determining in regard to the minor’s upbringing or property cannot be resolved under the statutory procedures in Pt II of the 1989 Act in a way which secures the best interests of the child, or where the minor’s person is in a state of jeopardy from which he can only be protected by giving him the status of a ward of court, or where the court’s functions need to be secured from the effects, potentially injurious to the child, of external influences (intrusive publicity for example) and it is decided that conferring on the child the status of a ward will prove a more effective deterrent than the ordinary sanctions of contempt of court which already protect all family proceedings. The open court statement made by Sir Stephen Brown P in Re AD (a minor) [1993] Fam Law 43 appears to provide an illustration of wardship functioning usefully in that last context, although it is to be observed that the jurisdiction was in that instance accepted by all parties by agreement.

Such is the legal background against which the circumstances of the present case must now be described in a little more detail. T was born on 8 July 1979 to married parents (the natural mother and father) who separated in 1982. She and her younger sister, S, were left in the care of the natural father. In 1986 their names were entered on the child protection register of the local authority in whose area they were then living, by whom they were placed later that same year with Mr and Mrs T, on what was initially a long-term foster placement. On 30 September 1987 T and S were formally adopted by Mr and Mrs T (whom I will call ‘the adoptive parents’).

The two girls were securely integrated into the home of the adoptive parents, but as T approached her teenage years, problems arose which led the adoptive parents, in May 1992, to request their own local authority, Avon County Council (which had not been concerned in the original placement and which I shall call hereafter ‘the authority’), to arrange for T, without being formally received into care, to be temporarily accommodated in a suitable foster home while efforts were made to sort out the problems and secure her eventual return to her own home with the adoptive parents and her sister, S. In that month she was placed by the authority with her present temporary foster mother, Mrs I. With the approval of the authority, she has had some contact with her natural family, the relatives concerned being her paternal grandparents and an aunt,

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Mrs WB, all of whom live together in the same household in Wales. Although T was not formally in their care, the authority took a sufficient interest in T’s problems to approve arrangements for her to be referred for therapeutic advice to a consultant child psychiatrist, Dr Culling, in August 1992.

T’s contacts with her natural relatives led her to form a resolve that she wished to live for the future with her natural aunt, Mrs WB, in the joint household with the natural grandparents. She consulted a solicitor, Mr Burrows. He obtained legal aid for an application to the county court for a residence order under s 8 of the 1989 Act directing her to reside with Mrs WB. Such an application could not be made without the leave of the court under s 10(2)(b), and such leave could (as already mentioned) only be granted if the court was satisfied under s 10(8) that she had ‘sufficient understanding to make the proposed application’.

In making the necessary leave application on her behalf Mr Burrows wrote to the court on 21 October 1992 enclosing copies of her intended application (in which the grounds which I shall later be quoting were set out). His letter, after describing the estrangement between T and the adoptive parents and an incident said to have led up to it, said:

‘At present Social Services have a programme of rehabilitation with [T] with her family, but this is not what [T] wishes. When [T] was consulting us, she seemed to be of sufficient understanding to give us instructions and to proceed in this matter. We would therefore be grateful if you would give leave for this application to be issued.’

The district judge, without further inquiry, dealt with the application on paper, and the necessary leave was issued in the form of an order dated 27 October 1992.

The application, which bore T’s signature, was drawn up with the adoptive parents named as respondents. The relief claimed was a residence order in favour of Mrs WB. The grounds for the application were expressed in these terms:

‘1. I want to live with my grandparents and aunt. 2. I am accommodated by the local authority who have placed me with a foster carer. There was an incident … [she then gave her account of something that had occurred in the adoptive home] … I ran away. 3. My mother has been ambivalent about my return. 4. Whilst living with my mother I did not get proper treatment and I may have been failing to thrive. 5. I am dyslexic but my mother does not help me at all with this problem. I have received much more assistance from my foster mother.’

In stating her plans for the future, T stated on the application form that she wished to live with her natural grandparents and aunt in Wales, adding: ‘They all want what is best for me and I want to have a settled life with them.’

The adoptive parents were very upset when the application (of which they had not been given prior notice) was served on them. They filed an answer on 16 November 1992 in which the application was vehemently opposed.

The district judge gave preliminary directions on 18 November 1992 for a welfare officer’s report to be filed within ten weeks, and ordered that in the meantime notice of the application should be given to Mrs WB (with an intimation that she could if she wished make an application for a residence order in her own right) and also to the authority (with an intimation that they could apply to be joined as additional parties). T’s application that she should

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be allowed to spend part of the forthcoming Christmas holiday with Mrs WB and the natural grandparents was adjourned to the county court judge for hearing on 21 December.

When that hearing took place before Judge Wigmore he refused the application for Christmas contact on the ground that it would be premature to order it at that preliminary stage of the proceedings. He gave further directions, including an order that the application should thenceforth proceed in the High Court, that the authority should carry out an investigation under s 37(1) of the 1989 Act, that the court welfare officer should arrange for T to be seen by a consultant child psychiatrist, Dr Gay, who was to file a report within ten weeks, and that the application be listed for further directions on 4 March 1993, with leave for all parties to apply for further directions before a High Court judge in the interim.

Pursuant to that leave, T (who was disappointed by the refusal of interim contact with the natural family) made a renewed application to the High Court judge in Bristol, Thorpe J, on 28 January 1993 for interim staying contact with Mrs WB and the natural grandparents. The hearing was attended initially by T and her solicitor, Mr Burrows, and by the adoptive father and mother and their solicitors and their counsel, Mr Evans. The authority and Mrs WB had not by that stage taken up the court’s earlier invitation to apply to be joined as parties, but the judge was told that they had been notified of the hearing and were present in the court building. Mrs WB and the authority’s representatives were accordingly invited, by the judge’s direction, to come into court. Mrs WB told the judge that she had obtained legal aid to make an application for a residence order in her own right and was on the point of doing so. The authority’s representative told him that the s 37 investigation was under way and should be completed by the middle of February 1993. Mr Evans told the judge that the adoptive mother and father had it in mind to start wardship proceedings, and that they wished to use that hearing to canvass the response of the court to this intended step. Mr Burrows indicated that if a wardship summons were to be issued, T would apply to have it struck out in limine on the basis that there were already proceedings on foot in which all issues affecting T’s future could be determined. Both sides accordingly agreed that to save the expense and delay involved in a further hearing to determine that issue, the judge should proceed to deal with it there and then.

He did so, and resolved the issue in favour of the adoptive father and mother. By his order (which is the order now under appeal to this court) he directed upon the undertaking of the adoptive parents to issue wardship proceedings to which the authority, Mrs WB, and T herself would be joined as defendants, that the wardship should be confirmed and that the Official Solicitor should have leave to enter an appearance on T’s behalf as her guardian ad litem. He further directed that the Official Solicitor should have leave to instruct Dr Gay or any other expert he thought appropriate, and that T should have no further interview with Dr Culling until the Official Solicitor had an opportunity of considering what further steps should be necessary. The court welfare officer was discharged from reporting in the case. The wardship originating summons was ordered to be listed for hearing on 2 April 1993 and the judge directed that T’s residence order application should be consolidated with the wardship proceedings. Directions were also given for the intermediate hearing of T’s application for staying contact with Mrs WB, and the authority were authorised to arrange contact generally between T and Mrs WB and the natural grandparents at their discretion.

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The judge made it clear that his reasons for making that order were the following. (1) This was a child whose best interests required her to have the benefit (both for the purposes of giving instructions for any appropriate psychiatric examination and generally in the conduct of the proceedings on her behalf) of a guardian ad litem. That should, ideally, be the Official Solicitor. (2) The services of a guardian ad litem could not be imposed on her against her wishes in private law family proceedings to which the child was a party acting on her own behalf through a solicitor instructed under r 9.2A, but could be imposed if she were to be joined as a party to wardship proceedings (in which the Official Solicitor could be authorised, against her wishes if need be, to enter an appearance on her behalf as her guardian ad litem). (3) Wardship would be a more satisfactory procedure for getting the views of all parties before the court, and would have the advantage of involving the Official Solicitor directly as guardian ad litem, as opposed to a less specific role, such as amicus curiae (which would be the only means of securing his participation in the proceedings if they continued solely as an application under Pt II of the 1989 Act).

It is important to emphasise that there was no suggestion made before the judge that the conditions under r 9.2A(1)(b) were not satisfied so far as the s 8 application was concerned. Indeed, the judge expressly contemplated that Mr Burrows would remain her solicitor in the continuing s 8 proceedings, which would stay alive although consolidated with (and subsidiary to) the wardship.

Apart from a preliminary issue, which will be mentioned shortly, the principal questions raised by this appeal are: (1) was the judge justified in directing or authorising the use of wardship proceedings—whether as a means of introducing the Official Solicitor or for any other reason? (2) if he was not, is there any other basis on which it would have been open to him to make an order which would result in a next friend having to be appointed for T? (3) was the judge right in thinking that he had available to him (though in the upshot he rejected it) the alternative option of involving the Official Solicitor in the capacity of amicus curiae?

The preliminary issue arises in this way. By the time the case had come before Thorpe J the court had, as already mentioned, made an order under s 37(1) of the 1989 Act directing an investigation by a local authority. That subsection reads:

‘Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.’

Section 41 of the 1989 Act (which is part of its public law provisions) directs (by sub-s (1)) that ‘For the purpose of any specified proceedings’ the court is bound to appoint a guardian ad litem for the child concerned unless satisfied that it is not necessary to do so to safeguard his interests. ‘Specified proceedings’ are defined by sub-s (6) as meaning, inter alia, ‘any proceedings … in which the court has given a direction under section 37(1) and has made, or is considering whether to make, an interim care order’.

No care order has been made in the present case, but Mr Evans for the adoptive parents made the submission (not urged upon the judge but raised for the first time in this court) that since the judge who made the s 37(1) order on 21 December 1992 could only have done so upon the basis that it appeared to him that it might be appropriate for a care or supervision order to be made with

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respect to T, it necessarily follows that this case is one in which the court is ‘considering whether to make, an interim care order’ for the purposes of s 41(6)(b).

That is an ingenious submission, but for myself I am unable to accept it. Sections 37(1) and 41(6)(b) address entirely different situations. In the former case the court is merely listing its options and considering eventualities. If one of those appears to be the eventual making of a care or supervision order, then the ground is laid for an order for investigation by the local authority. In the latter case, the court is directly confronted by circumstances which demand immediate consideration of the making of an interim care order. There is no evidence to support a suggestion that the county court judge, when he directed a local authority investigation on 21 December 1992, had an interim care order in mind: indeed the programme which he authorised that day was wholly consistent with an intention to continue the application as a private law family proceeding, and wholly inconsistent with any thought of interim care proceedings.

The way is therefore clear to consider the three questions I mentioned earlier.

(1) Was the judge justified in directing or authorising the use of wardship proceedings—whether as a means of introducing the Official Solicitor or for any other reason?

No one aware of the facts of this case could fail to sympathise with T, who must feel herself prey to torn loyalties and is clearly in need of all the help that can be given to her, or with the adoptive parents, who have shown her love and kindness and are still ready to offer her a permanent and loving home. It is thoroughly understandable, in such circumstances, that the judge should have wished to provide T with the most objective representation and the most appropriate medical assessment that could be devised for her, and should have favoured the involvement of the Official Solicitor as her guardian ad litem as being an appropriate means to that end. It may even be fairly said that in placing this vulnerable child under the protection of a prerogative jurisdiction of great antiquity, which until the coming into force of the 1989 Act had become refined by the courts into an effective instrument for achieving continuity and flexibility in judicial supervision of child care procedures, the court was giving her, in juridical terms, the most favourable treatment possible.

The arguments of Miss Parker QC on T’s behalf, supported in this respect by those of Mr Holman QC for the Official Solicitor, have persuaded me, however, that the judge was wrong to have invoked the wardship jurisdiction. Rule 9.2A(1) gives T exactly the same rights in wardship as she enjoys in proceedings under Pt II of the 1989 Act. Provided the conditions of that paragraph are satisfied, she can bring or defend wardship proceedings without a next friend or guardian ad litem, and the court would have no power to impose one upon her against her will. If, therefore, the judge believed that wardship provided a means of requiring T to accept a guardian ad litem, he was mistaken. If he thought that wardship would secure for her, or for the adoptive parents, any advantage not available in ordinary family proceedings under Pt II of the 1989 Act, he was mistaken in that respect also. Nor have I been able to discern in any of the circumstances of this case, touching though they may be, any factor which would justify giving T the status—an exceptional status under the modern law as it must now be applied—of a ward of court.

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(2) Is there any other basis on which it would have been open to the judge to make an order which would result in a next friend having to be appointed for T?

The result of ruling out wardship is that the judge will be left, at any future hearings of the case, with the same anxieties that led him to explore means of imposing a guardian ad litem in the first place. I have stressed that there has not so far been any suggestion that Mr Burrows is or may be incorrect in the view he has formed, for the purpose of r 9.2A(1)(b)(i), that T is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge—and for that matter to other judges who may find themselves confronted with a similar situation—simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions.

It is a question which arises under r 9.2A(1)(b)(i), and also under r 9.2A(10), which provides:

‘Where—(a) the court revokes any leave under paragraph (8), or (b) either of the conditions specified in paragraph (1)(b)(i) and (ii) is no longer fulfilled, the court may, if it considers it necessary in order to protect the interests of the minor concerned, order that some proper person be appointed his next friend or guardian ad litem.’

Whom do those sub-paragraphs constitute the judges of the child’s capability and understanding? Is it to be exclusively the solicitor whom the child is instructing, or purporting to instruct; or does para (10) of r 9.2A entitle the court, of its own motion or on the application of another party, to go behind the solicitor’s view and examine for itself the state of the child’s understanding and come to a conclusion which may differ from the view taken by the solicitor?

It is a difficult, but clearly important, question on which I have found the arguments finely balanced. They have been ably and persuasively urged on both sides. It is the court’s duty, Miss Parker urges us, to construe the condition in para (1)(b)(i) strictly according to its language. It is the solicitor, and the solicitor alone, who has been entrusted by the rule with the duty of giving consideration to the minor’s ability to give instructions, with due regard to the child’s understanding. It would accord with the emancipated view taken by the law these days of children’s rights of choice (exemplified by the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112) to impute to the draftsman of the 1991 rules a resolve to free from the constraints of representation involved in the appointment of a next friend or guardian ad litem any child who can satisfy a solicitor as to her ability and understanding. If that leads the child to direct his solicitor into headstrong support for a course that does not impress the court as being in the child’s best interests, the judge is not bound to accede to it, and there will always be the safeguards represented by the potential involvement of a court welfare officer as an aid to an objective analysis of the child’s best interests.

Mr Holman for the Official Solicitor, with the support of Mr Evans for the adoptive parents, argues that it would be wrong to impute to the draftsman an assumption that in assessing the ability of his minor client to give instructions a solicitor would be bound to reach a reasonable or at least a tenable conclusion. There are bound to be cases (and he was here of course arguing generally and without any regard to the facts of the instant case) where some maverick assessment might be made by a solicitor who, although acting in complete sincerity and good faith, had taken an unreal, or even an absurd, view of his

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prospective client’s capabilities to instruct him. The 1991 rules appoint the court the sole arbiter of the child’s ‘understanding’, both when the child is making an application for leave to proceed under r 9.2A(1)(a), and when the child is applying for discharge under r 9.2A(4). The 1989 Act appoints the court the sole arbiter of the child’s ‘understanding’ in cases where a child is applying under s 10 (2) and (8) for leave to apply for a s 8 order. It would be capricious to construe the 1991 rules as excluding the court altogether from the inquiry into capability and understanding which has to take place in the single instance where the child is instructing a solicitor. Mr Holman also relies on the passage in the judgment of this court in Re S (a minor) (independent representation) [1993] 3 All ER 36 at 44, [1993] Fam 263 at 276 (acknowledged to be obiter to the decision in that case) where Sir Thomas Bingham MR said:

‘We would certainly agree that any solicitor accepting instructions from a child in this situation must exercise a scrupulous, conscientious and responsible judgment. We have no doubt that solicitors do so. But, if a court were to consider, even in the absence of information by the solicitor under para (9), that para (1)(b)(i) was not satisfied, it would in our opinion be entitled to act under para (10). This would not, of itself, terminate the solicitor’s retainer, but it would be likely to lead to withdrawal of the child’s legal aid.’

My own conclusion, having given the question full consideration as one that arises now for direct decision, is that the arguments of the Official Solicitor are to be preferred. Miss Parker’s argument certainly has linguistic merit, but if the rule is to be construed according to the whole tenor of the 1989 Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor.

I would hope and expect that instances where a challenge is directed to a solicitor’s view of his minor client’s ability to instruct him will be rare, and that cases where the court felt bound to question such ability of its own motion would be rarer still. If and when such instances do arise, I would expect them to be resolved by a swift, pragmatic inquiry conducted in a manner which involved the minimum delay and the least possible distress to the child concerned. It would be very unsatisfactory if such issues themselves became the subject of detailed medical or other professional investigation. My own experience in this field of the law suggests that judges can be trusted to use their powers under r 9.2A(10) sensitively, recognising that in borderline cases the solicitor’s view should be entitled to the benefit of the doubt, and that solicitors, for their part, can be expected to appreciate that appraisal of a minor’s capability to give instructions may often represent a difficult task in which objectivity and precision are not easily achieved, and to be ready to acknowledge, and even welcome, a second opinion.

In cases where the court does intervene to appoint a next friend or guardian ad litem under para (10)(b), there would appear to be no objection in principle (as Mr Holman was willing to concede) to the solicitor remaining instructed on behalf of the child (thus matching a situation which is expressly contemplated by the 1989 Act and the 1991 rules in public law cases) although the practicability of that development would depend on legal aid and other considerations which it lies beyond the scope of this appeal to consider.

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(3) Did the judge have the alternative option of involving the Official Solicitor as amicus curiae?

There has undoubtedly been a recent tendency for judges to invite the Official Solicitor to act as amicus in cases where the functions he has been asked to perform go beyond the traditional role of instructing counsel to assist the court on difficult issues of law. Some of them have been ad hoc expedients adopted to cater for an unusual situation created by the recent changes in family law. Thus Re W (a minor) (medical treatment) [1992] 4 All ER 627, [1993] Fam 64 and Re H (a minor) (16 March 1993, unreported) were both cases in which the Official Solicitor had been concerned in the proceedings as guardian ad litem but had then been removed on the application of the child. He remained as amicus at the request of the court.

Mr Holman told the court that the Official Solicitor remains willing in principle to consent to act as an amicus when called on to do so, but pointed out that such a role has limitations. There are many functions of a guardian ad litem which an amicus cannot perform. The role does not normally carry, for example, any authority to consent to medical treatment on behalf of the minor, and it is uncertain whether an amicus would be competent to maintain an appeal. He can assist the court by calling a particular witness (a function normally limited in the past to the calling of academic evidence as in Keyes v Keyes and Gray [1921] P 204 and Gaskill v Gaskill [1921] P 425, [1921] All ER Rep 365). An amicus does not normally exercise the investigative functions carried out by a court welfare officer (or by the Official Solicitor when he is acting as guardian ad litem).

Those have been very helpful submissions. The history of the office of the Official Solicitor is one of constant adaptation, and it may be that adjustment of the role of amicus to meet the demands of the recent changes in the procedures for the hearing of private law family cases will provide another instance. For present purposes, it is perhaps sufficient to say that the option of involving the Official Solicitor as an amicus curiae is always available, but his services in that capacity should be resorted to sparingly, and in the knowledge that he is unlikely to be able to assist the court to the same extent as in cases where he is involved as next friend or guardian ad litem.

Reference should finally be made to applications by a child under s 10(2) and (8) of the 1989 Act for leave to apply for a s 8 order. There has been no appeal against the order that was made by the district judge in the present case on 27 October 1992 giving such leave. It would not therefore be right to criticise the procedures that were then followed. I would, however, wish to say, for the assistance of those who may be called on to deal with such applications in future, that s 10(8) clearly envisages the court being under a duty to be judicially satisfied as to the child’s understanding before granting leave. The importance of that duty has been emphasised by the President’s practice direction of 22 February 1993 (Practice Direction [1993] 1 All ER 820, [1993] 1 WLR 313) requiring all such applications to be brought in the High Court. Each case will have to be looked at independently on its merits, and the court will have to be alert to detect instances where leave cannot conscientiously be given without more detailed evidence, or without an opportunity being afforded to any person who might be able to assist the court in regard to an appreciation of the child’s powers of understanding to make their views known before the application is granted.

Page 532 of [1993] 4 All ER 518

For all these reasons I would, for my part, allow the appeal. I would propose that the order of Thorpe J of 28 January 1993 be discharged with effect from today, in so far as it relates to wardship. The result of that will be that the proceedings will now continue, as they began, solely as an application by T for a residence order. I understand that they are due to come before the judge very shortly for an order as to interim contact with the natural family, and for directions generally. The nature of those directions will be entirely a matter for the discretion of the judge, assisted by any observations from this court that he finds relevant to its exercise.

STAUGHTON LJ. I agree.

SIR THOMAS BINGHAM MR. I fully agree with the judgment of Waite LJ, which I have had the opportunity to consider in draft. The handling of this sensitive and difficult case posed real problems for the judge but he did in my view err in resorting to wardship. It will be for him to judge how the case should be conducted from now on within the confines of the Children Act 1989 in the light of this and other relevant judgments.

I comment on one aspect of this case only: the criticism made by Miss Parker QC of the obiter passage in the court’s judgment in Re S (a minor) (independent representation) [1993] 3 All ER 36 at 44, [1993] Fam 263 at 276. She submitted that on a correct construction of r 9.2A(10)(b) ‘the conditions specified in paragraph (1)(b)(i) and (ii)’ must be that ‘a solicitor … considers that the minor is able …’ and that a solicitor ‘has accepted instructions …' Accordingly, she argued, the solicitor’s judgment and his acceptance of instructions are conclusive and preclude any order by the court under para (10).

There is, plainly, considerable force in this construction on a literal reading of the rules. Had the draftsman intended the rules to have this effect, however, I would have expected him to refer in para (10)(b) not to the conditions in para (1)(b)(i) and (ii) being no longer fulfilled but to the court receiving information under para (9). More importantly, it seems to me very unlikely that the draftsman intended the solicitor’s judgment to be conclusive. That the solicitor’s judgment is to be respected and given great weight, I do not doubt. Judges should be very slow to go behind or question the professional judgment of a responsible solicitor. But the judge’s overriding duty is to promote the welfare of the child and if he is properly persuaded that it is necessary in order to protect the interests of the child that some proper person be appointed his or her next friend or guardian ad litem I do not think he is precluded from exercising his power under para (10) by the refusal of the child’s solicitor to accept that the condition in para (1)(b)(i) is not, or is no longer, fulfilled. Cases must arise in which, for whatever reason, solicitors will take an unsustainable view of a child’s understanding, and in such a situation the judge should not be powerless.

In making these observations I am speaking generally, and without specific reference to the present case. This court has no evidence of T’s understanding and capacity. We are in no position, and are not invited, to express any view on that subject.

Appeal allowed. Leave to appeal to the House of Lords refused.

L I Zysman Esq  Barrister.

R v Orgles and another

[1993] 4 All ER 533

Categories:        CRIMINAL; Criminal Evidence: ADMINISTRATION OF JUSTICE; Legal Aid and Advice        

Court:        COURT OF APPEAL, CRIMINAL DIVISION        

Lord(s):        NOLAN LJ, WRIGHT AND HOLLAND JJ        

Hearing Date(s):        23 APRIL, 19 MAY 1993        

Criminal evidence – Prejudice to accused – Evidence of incident occurring after incident giving rise to charge – Admissibility – Later incident involving conduct similar to that involved in incident giving rise to charge – No evidence as to identity of person concerned in later incident – Whether evidence of later incident admissible.

Jury – Dissension among jury – Procedure to be adopted by trial judge when dissension among jury apparent – Whether judge should question jurors individually or as a whole.

The appellants, who were brother and sister, were charged, together with their mother, with threatening to damage or destroy property contrary to s 2(a) of the Criminal Damage Act 1971. The appellants were alleged to have threatened to burn down the house and damage the cars of a family in the same locality, there being ill-feeling between the two families. Some days after the alleged threats three cars belonging to family to whom the threats had been made were damaged by paint stripper. It was not known who had damaged the cars. At the appellants’ trial the judge ruled that evidence of the damage to the cars was admissible. In the course of the trial two members of the jury complained independently of each other and of the other members of the jury that there was friction amongst the jury as a whole which was affecting their concentration. The judge questioned each of the complaining jurors in open court in the absence of the rest of the jury but in the presence of the accused and counsel and established that both jurors felt that if, when the jury reassembled, he gave them a short lecture on how they should approach their duties they would feel able to continue. The full jury was then brought into court and the judge, having told them that the dissension in the jury room had been brought to his attention, asked them to retire for a short time to decide whether they would be able to carry on. The jury duly retired and on their return indicated that they felt able to continue. The trial proceeded and the appellants were convicted, one of the appellants unanimously and the other by a majority of ten to two. The jury were unable to agree on a verdict in respect of the mother and she was acquitted. The appellants appealed against their convictions on the grounds (1) that the judge had erred in admitting evidence of the damage to the cars by a person unknown three days after the incident giving rise to the charges and (2) that he had erred in questioning the jurors individually after becoming aware of friction in the jury room.

Held – The evidence of the damage to the cars by a person unknown three days after the incident giving rise to the charges had been wrongly admitted since the essential issue for the jury was whether the appellants, or either of them, had made the threats at the time alleged with the necessary intent and the fact that criminal damage different from that threatened by the appellants had been perpetrated a few days later by a person unknown could have had no materiality to that issue and without such materiality the evidence was plainly

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inadmissible, but, even if it had any materiality at all, it was manifestly outweighed by the prejudicial effect of such evidence. The admission of that evidence was a material irregularity and accordingly the appeals would be allowed and the convictions of both appellants quashed (see p 536 d e g h and p 539 c d, post).

Per curiam. Where circumstances arise which raise an inference that one or more members of a jury may not be able to fulfil their oath or affirmation it is the duty of the trial judge to inquire into and deal with the situation to ensure that there is a fair trial. Where the problem is external to the jury as a body it may be appropriate to make an inquiry of an individual juror in the presence of the accused and counsel but in the absence of the rest of the jury, but where the problem is internal to the jury so as to affect the capacity of the jury as a whole to fulfil the oath or affirmation and which may prejudice a fair trial then, once the matter has been brought to the judge’s attention, the whole jury should be questioned by the judge in open court through the foreman to ascertain whether, as a body, it anticipates being able to bring in a true verdict according to the evidence. It is then a matter for the judge’s discretion whether he makes no order, whether he discharges the whole jury or whether he discharges individual jurors up to three in number. It is however wrong to separate and question individual members of the jury in such circumstances (see p 538 d to j, post).

Notes

For the discharge of individual jurors, see 11(2) Halsbury’s Laws (4th edn reissue) 994, and for a case on the subject, see 15(1) Digest (2nd reissue) 351, 15063.

For the power to discharge the jury during the trial, see 11(2) Halsbury’s Laws (4th edn reissue) para 1022, and for cases on the subject, see 15(1) Digest (2nd reissue) 459–463, 16357–16401.

For the Criminal Damage Act 1971, s 2, see 12 Halsbury’s Statutes (4th edn) (1989 reissue) 528.

Cases referred to in judgment

R v Hambery [1971] 3 All ER 561, [1971] QB 924, [1977] 2 WLR 999, CA.

R v Richardson [1979] 3 All ER 247, [1979] 1 WLR 1316, CA.

Appeals against conviction

Kevin Charles Orgles and Julie Ann Orgles appealed against their conviction on 31 January 1992 in the Crown Court at Inner London Sessions before Mr Recorder Philpot and a jury of threatening criminal damage to property, contrary to s 2(a) of the Criminal Damage Act 1971, for which Kevin Orgles was sentenced to nine months’ imprisonment suspended for two years and Julie Orgles was ordered to perform 60 hours’ community service. The facts are set out in the judgment of the court.

Philip Levy (assigned by the Registrar of Criminal Appeals) for the appellant Kevin Orgles.

Jeremy Ornstin (assigned by the Registrar of Criminal Appeals) for the appellant Julie Orgles.

W John Jones (instructed by the Crown Prosecution Service, Inner London) for the Crown.

Cur adv vult

19 May 1993. The following judgment of the court was delivered.

Page 535 of [1993] 4 All ER 533

HOLLAND J. The appellants, Kevin Charles Orgles and Julie Orgles, are brother and sister. They were tried in the Crown Court at Inner London Sessions on an indictment alleging against them and against their mother, Billie Rose Orgles, one count of threatening to destroy or damage property contrary to s 2(a) of the Criminal Damage Act 1971.

The particulars of the count allege that they on 6 August 1991 without lawful excuse had threatened Yvonne Edwards that they would damage a car belonging to her and a house at 22 Nightingale Road, London SE13 belonging to Yvonne and Winford Edwards by blowing them up intending that Yvonne Edwards would fear that the threat would be carried out.

In the event the jury convicted Kevin Orgles by a majority of ten to two. The jury further convicted Julie Orgles by a unanimous verdict, but were unable to agree on a verdict in respect of Billie Rose Orgles. The Crown then offered no evidence against this latter defendant and accordingly a verdict of not guilty was entered by direction of Mr Recorder Philpot.

Subsequently on 28 February 1992 the recorder sentenced the appellants as follows. Kevin Orgles was sentenced to nine months’ imprisonment suspended for two years; he was further ordered to pay £200 towards the costs of the prosecution. Julie Orgles was sentenced to 60 hours’ community service; she was further ordered to pay £100 towards the costs of the prosecution. Both appellants now appeal against conviction by leave of the single judge.

The prosecution’s essential case was in short compass. At the material time there was ill feeling between the family of the appellants and the Edwards family. It is material to note that the appellants are white and the Edwards are black. Both families live in the same area of Lewisham and the ill feeling reflected the fact that one member of the appellants’ family then awaited trial for some form of assault on a member of the Edwards family.

At 11.40 pm on 16 August 1991 Mrs Edwards, then in her bedroom, heard shouting. She looked out and saw a Mercedes car with abusive occupants. She claimed to recognise the appellants as two of the persons. One of the shouts was: ‘Nigger, we’re going to burn your house down. You have got it coming.’ Her evidence was that she expected that threat to be carried out. Her husband was in the living room. He heard them shout: ‘Come out you nigger, we’re going to get you. We’re going to burn your house down. We’re going to blow up your car.' He claimed to recognise the male appellant as one of the persons concerned. So much for the offence as alleged; both appellants contended that they were elsewhere that night and accordingly raised alibi defences.

In the course of the trial the learned recorder made a ruling as to admissibility of evidence, which ruling founds part of the appeal. Thus the prosecution secured his leave to adduce evidence that on 20 August, that is a few days after the incident in question, three cars belonging to the Edwards family and parked outside their house were damaged by the application of paint stripper. There was no evidence as to who was responsible but there was evidence that on 22 August the female appellant was seen to walk past these damaged cars, look at them and then to punch the air shouting, ‘Yeah’. At the outset of the trial all the defendants submitted that such evidence as to damaging of these cars was inadmissible. In essence, it was contended that evidence of the conduct of persons unknown on 20 August had no probative significance but was highly prejudicial. In the event, the learned recorder made his ruling in the following terms:

‘One of the threats made on the Friday night is found to have been carried out the following Monday night, Tuesday morning, though the means of

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committing the damage vary. Damage done but not threatened, not threatened in specific terms, was damage done to other cars by the same means and in the ownership of the same family. I am quite satisfied that that provides some evidence of substance to connect the threateners with the damage done and that that would be some evidence of substance of an intent in the threateners that the threats were intended to be taken seriously by the recipients as laid in the particulars. It has been suggested, if there is some probative value in this evidence, which I find that there is, that the prejudice so outweighs such value that in the balance this evidence should not be admitted. Taking the word “prejudice” in its true sense, that is to say pointing to a danger that the jury might decide [sic] the case or a piece of the evidence, come to a conclusion on it for the wrong reasons, I am satisfied there is no such danger and accordingly, as I have said, I shall admit this evidence.’

To this court the appellants contend that such a ruling was wrong. We have to say that we agree. The essential issue for the jury was whether the appellants, or either of them, made the threats on 16 August with the necessary intent. The fact of criminal damage different from that threatened and perpetrated some few days later by a person unknown could have had no materiality to that issue and without such materiality, the evidence was plainly inadmissible. Further, if, contrary to our view, there was any materiality at all, such was manifestly outweighed by the prejudicial effect. The ruling by the recorder appeared to have as its premise an assumption that the damage done on 20 August was perpetrated by those who made the threats on 16 August: in truth there was no foundation at all for that premise. There was no evidence to connect the appellants with that damage; there was indeed some evidence (the behaviour as witnessed on 22 August) to suggest that the female appellant had not been responsible for it but was happy to indorse it.

Turning to the impact of this ruling upon the trial, we note that in the summing-up the recorder failed to give the jury any guidance as to the relevance and weight of the evidence that he ruled admissible and indeed put it before them as one piece of what he described as ‘the undisputed evidence’. The summing-up did not ameliorate the problem; it worsened it. We are satisfied that his ruling was a wrong decision which resulted in a material irregularity that there is no scope for the application of the proviso and that accordingly the appeal of each appellant must be allowed and their respective convictions quashed.

The trial featured a further matter of some general importance. Part way through the hearing of the evidence two members of the jury complained to court staff about friction amongst the jury as a whole, which friction was affecting their concentration. Each such complaint was made independently of the other and independently of the rest of the jury. The recorder apparently communicated the fact of such complaints to counsel and, when they had had opportunity to take instructions, he sought submissions as to the appropriate course to take. Unhappily these submissions did not accord with each other and, in the event, the recorder decided that the appropriate course was to bring the first complaining juror (a lady) into open court and there to question her in the absence of the remaining members of the jury, but in the presence of the accused and their counsel. Having emphasised that he did not want her to say what had been said in the jury room, he went on:

Page 537 of [1993] 4 All ER 533

‘But I am going to ask you, in a moment, whether or not you feel able to carry on and give proper consideration, as each juror should, to the evidence in the case. What I am considering, although I have not finally made up my mind about it, is whether or not I should, when the jury are reassembled, give them, effectively, a two or three minute lecture on how they should approach their duties, if they did not already realise, in short, that they should pay attention to the evidence and, of course, respect the opinions and view points of each and all the other members of the jury. Suppose I were, when the jury reassembled, to say that to them. Do you think that you, in the position you have already found yourself, would be able to carry on as a juror with the other eleven, and do your duty, as, no doubt, you would wish to?’

She responded that she would like to carry on and that she thought that she would be able to do so. The recorder then asked her to leave court and asked counsel whether they would submit that she should be discharged;  all indicated ‘No’.

There then followed further discussion as to procedure, following which the recorder adopted a similar course with the other juror (a man), receiving from him an assurance that he felt able to reach a verdict ‘which I feel would be correct and honest’. No counsel wished to submit that the second juror be discharged. Then, after yet further discussion, the recorder caused the full jury to be brought into court and addressed them as follows:

‘Mr Foreman, it has been drawn to my attention that there has or appears to have arisen within the jury some dissension and ill-feeling arising out of this case. Of course, differences of opinion amongst jurors are inevitable when you have twelve people drawn at random; and the jury will know as a whole, as individuals, that each has taken an oath to attend to the evidence and conclude upon the evidence. Mr Foreman, I am going to ask the jury, as a whole, to retire for, I would have thought, five or six minutes would be sufficient. Upon their return, Mr Foreman, I will ask you, of course acting on behalf of all twelve of the jurors, to tell the court simply this: whether the jury feel that they can conscientiously continue attending to their duties in this case and bring in a true verdict … if the jury as a whole have reached such a level of dissension and ill-feeling, and I do not want to know about levels, if that is the situation, then plainly the jury could not possibly, as a whole, do justice in this case; and, Mr Foreman, you will tell me. So please, members of the jury, would you retire, I think for five or six minutes; and I will ask the foreman that question: whether he thinks the jury can carry on properly.’

In the event, upon the return of the jury to the court, the foreman intimated on their behalf an ability to continue and the trial proceeded.

Before this court, it was submitted that the procedure adopted by the recorder was wrong so as to amount to an irregularity. We agree. By way of preface, we have sympathy for him: the problem was unexpected; it was unusual (it is not encompassed within the joint experience of the members of this court); there was no precedent to guide him; and counsel could not provide an agreed submission. That said, in the judgment of this court an appropriate approach to the problem is as follows.

(a) Each member of a properly constituted jury has taken an individual oath to reach a true verdict according to the evidence; or has made an affirmation to the like effect.

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(b) Circumstances may subsequently arise that raise an inference that one or more members of a jury may not be able to fulfil that oath or affirmation.

(c) Normally such circumstances are external to the jury as a body. A juror becomes ill; a juror recognises a key witness as an acquaintance; a juror’s domestic circumstances alter so as to make continued membership of the jury difficult or impossible;  so far, we give familiar, inevitably recurring circumstances. Less frequent, but regrettably not unfamiliar, is the improper approach to a juror, alternatively a discussion between a juror and a stranger to the case about the merits of the case, in short, that which every jury is routinely warned about.

(d) Occasionally, as in the instant case, the circumstances giving rise to the jury problem are internal to such as a body. Whereas the duty common to all its members normally binds the twelve strangers to act as a body, such cannot always occur. From time to time there may be one or more jury members who cannot fulfil the duty, whether through individual characteristics or through interaction with fellow jury members.

(e) However the circumstances arise, it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors (to a limit of three: see s 16 of the Juries Act 1974), or a whole jury (see R v Hambery [1977] 3 All ER 561, [1977] QB 924).

(f) The question arises as to whether and in what circumstances that duty should be exercised by the trial judge in the absence of the jury as a body. As to this, first, there is no doubt but that the judge’s discretion enables him to take the course best suited to the circumstances (see R v Richardson [1979] 3 All ER 247, [1979] 1 WLR 1316 for an extreme course) and frequently it is appropriate to commence and continue the inquiry with the juror concerned separated from the body of the jury. Such a course cannot readily be faulted if the circumstance giving rise to the inquiry is external to the jury as a body; indeed if the problem is an approach to a juror, alternatively some external influencing of a juror, only such a course is feasible. The ‘infection’, actual or potential, of one juror must be prevented if possible from spreading to the rest of the jury, and it is common form to have the individual juror brought into open court with the rest of the jury absent so that the trial judge may make an inquiry in the presence of the accused and counsel without jeopardising the continued participation of the rest of the jury.

(g) However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest, or, as here, two members, but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge’s exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number.

(h) That which the recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to

Page 539 of [1993] 4 All ER 533

friction within the jury, what should follow? It could not be right to discharge one or both and leave the rest of the jury to continue, arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view the inquiry could only be with the jury as a whole.

Given that there was this further irregularity, was it material so as to provide a further justification for quashing the conviction? We observe that after this trial proceeded there was no reason to think that this jury did not as a body seek to fulfil its duty. There were no further complaints and the range of verdicts are consistent with being true according to the evidence.

We do not think that this further irregularity was in the event material. However, for the reasons already given, these appeals are allowed and the convictions quashed.

Appeals allowed. Convictions quashed.

Kate O’Hanlon  Barrister.

R v Secretary of State for the Home Department, ex parte Leech

[1993] 4 All ER 539

Categories:        PRISONS        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        NEILL, STEYN AND ROSE LJJ        

Hearing Date(s):        26, 27 APRIL, 19 MAY 1993        

Prison – Letters – Prisoner’s letters – Correspondence with legal adviser – Power of governor to read or stop correspondence – Prison rule enabling governor to read and stop prisoner’s correspondence with legal adviser in respect of contemplated proceedings – Whether rule ultra vires – Prison Act 1952, s 47(1) – Prison Rules 1964, rr 33(3), 37A(1).

Under r 33(3)a of the Prison Rules 1964 a prison governor could read every letter to or from a prisoner and stop any letter that was objectionable or of inordinate length. Under r 37Ab of the 1964 rules the governor was not entitled to read or stop correspondence between a prisoner who was a party to proceedings in which a writ had been issued and his legal adviser. The applicant, a prisoner, applied for judicial review by way of a declaration that r 33(3) of the 1964 rules was ultra vires s 47(1)c of the Prison Act 1952, which authorised the making of rules for, inter alia, the regulation of prisons and the control of persons detained therein. The applicant contended that r 33(3) purported to enable the governor to read and stop correspondence between a prisoner and his legal adviser if no legal proceedings were pending, whereas nothing in the 1952 Act authorised

Page 540 of [1993] 4 All ER 539

interference with the solicitor/client relationship and its attendant privilege. The judge dismissed the application. The applicant appealed to the Court of Appeal.

Held – Section 47(1) of the 1952 Act did not expressly authorise the making of r 33(3) of the 1964 rules and in determining whether it did so by necessary implication the principle to be applied was that the more fundamental the right interfered with by a rule and the more drastic the interference, the more difficult it was to imply such a rule-making power. Although by necessary implication s 47(1) of the 1952 Act conferred power to make rules limiting prisoners’ civil rights in respect of confidentiality of correspondence, including to and from solicitors, nothing in the 1952 Act conferred power to interfere with or hinder the exercise of the right of unimpeded access to the court. Furthermore, s 47(1) did not authorise rules impeding communications between a prisoner and a solicitor regarding contemplated proceedings since a prisoner’s right of access to a solicitor for advice as to instituting proceedings was an inseparable part of his right of access to the court. Although there was an implied power pursuant to s 47(1) to read correspondence between a prisoner and a solicitor to ascertain that it was bona fide and to stop correspondence that was not, r 33(3) by conferring an unrestricted right on a prison governor to read correspondence between a prisoner and a solicitor and the right to stop correspondence if it was objectionable or of inordinate length was ultra vires in respect of correspondence between prisoners and solicitors since the rule created a substantial impediment to the exercise of the right to unimpeded access to the courts and to a solicitor for advice as to instituting proceedings. The appeal would therefore be allowed and a declaration that r 33(3) was ultra vires granted (see p 547 j, p 548 e to g j, p 549 c d, p 550 b, p 551 j to p 552 a, p 554 f to h and  p 555 d h j, post).

Dictum of Dickson J in Solosky v R (1980) 105 DLR (3d) 745 at 760, Raymond v Honey [1982] 1 All ER 756 and R v Secretary of State for the Home Dept, ex p Anderson [1984] 1 All ER 920 applied.

Campbell v UK (1993) 15 EHRR 137 considered.

Dictum of Lord Caplan in Leech v Secretary of State for Scotland 1991 SLT 910 at 917 not followed.

Notes

For prisoners’ communications with legal advisers, see 37 Halsbury’s Laws (4th edn) paras 1178–1179, and for cases on the subject, see 37(3) Digest (Reissue) 409, 5361, 5365–5367.

For the Prison Act 1952, s 47, see 34 Halsbury’s Statutes (4th edn) 664.

For the Prison Rules 1964, rr 33, 37A, see 15 Halsbury’s Statutory Instruments 273, 274.

Cases referred to in judgment

A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545, [1990] 1 AC 109, [1988] 3 WLR 776, CA.

Campbell v UK (1993) 15 EHRR 137, E Ct HR.

Comfort Hotels Ltd v Wembley Stadium Ltd [1988] 3 All ER 53, [1988] 1 WLR 872.

D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589, [1978] AC 171, [1977] 2 WLR 201, HL.

DPP v Hutchinson [1990] 2 All ER 836, [1990] 2 AC 783, [1990] 3 WLR 196, HL.

Page 541 of [1993] 4 All ER 539

Golder v UK (1975) 1 EHRR 524, E Ct HR.

Leech v Secretary of State for Scotland 1991 SLT 910, Ct of Sess (OH); affd 1993 SLT 365, Ct of Sess (IH).

Parry-Jones v Law Society [1968] 1 All ER 177, [1969] 1 Ch 1, [1968] 2 WLR 397, CA.

R v Dartmoor Prison Board of Visitors, ex p Smith [1986] 2 All ER 651, [1987] QB 106, [1986] 3 WLR 61, CA.

R v Secretary of State for the Home Dept, ex p Anderson [1984] 1 All ER 920, [1984] QB 778, [1984] 2 WLR 725, DC.

Raymond v Honey [1982] 1 All ER 756, [1983] 1 AC 1, [1982] 2 WLR 465, HL; affg [1981] 2 All ER 1084, [1981] QB 874, [1981] 3 WLR 218, DC.

Solosky v R (1980) 105 DLR (3d) 745, Can SC.

Cases also cited or referred to in skeleton arguments

Derbyshire CC v Times Newspapers Ltd [1992] 3 All ER 65, [1992] QB 770, CA.

R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 3 All ER 843, [1976] 1 WLR 979, CA.

R v Parole Board, ex p Wilson [1992] 2 All ER 576, [1992] QB 740, CA.

R v Secretary of State for the Home Dept, ex p Brind [1990] 1 All ER 469, [1991] 1 AC 696, CA; affd [1991] 1 All ER 720, [1991] 1 AC 696, HL.

Rantzen v Mirror Group Newspapers (1993) 143 NLJ 507, CA.

Waugh v British Railways Board [1979] 2 All ER 1169, [1980] AC 421, HL.

Appeal

The applicant, Mark Francis Leech, appealed from the decision of Webster J made on 22 October 1991 refusing his applications for declaratory and other relief against the Secretary of State for the Home Department in respect of the power claimed by the Secretary of State to open and read letters passing between the appellant and his solicitors about legal matters when proceedings were not in being. The facts are set out in the judgment of the court.

Edward Fitzgerald (instructed by B M Birnberg & Co) for the appellant.

Robert Jay (instructed by the Treasury Solicitor) for the Secretary of State.

Cur adv vult

19 May 1993. The following judgment of the court was delivered.

STEYN LJ.

The principal issue

Section 47(1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33(3) of the Prison Rules 1964, SI 1964/388, provides as follows:

‘Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.’

The principal question arising on this appeal is whether r 33(3) is ultra vires s 47(1) of the 1952 Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than

Page 542 of [1993] 4 All ER 539

merely to ascertain whether they are in truth bona fide communications between a solicitor and client.

The regulatory framework

Notwithstanding the narrowness of the principal issue, it is right at the outset to set out the regulatory provisions which touch on the matter. The status of the various facets of the regulatory framework must be identified. Section 47(1) of the 1952 Act is the only relevant primary legislation. Pursuant to s 47 rules are made by statutory instrument (see s 52(1) of the Act). And any statutory instrument containing rules under s 47(1) is subject to annulment by a resolution of either House of Parliament (see s 66(4) of the Criminal Justice Act 1967). The 1964 rules leave a large measure of discretion to prison authorities. The standing orders give guidance as to how discretionary powers are to be exercised. Circular instructions are issued by the Prison Department to prison governors. They are used to amend standing orders and are frequently absorbed in standing orders. Unlike rules made under s 47(1), standing orders and circular instructions are not made by statutory instrument and are not laid before Parliament.

Section 47(1) of the 1952 Act provides as follows:

‘The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and youth custody centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.’

A group of rules contained in rr 33 to 37A deal with prisoners’ correspondence and visits. The critical provision is r 33(3), which we have already set out, but it is necessary to read it in the context in which it appears. Rule 33, so far as material, reads as follows:

‘(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.

(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.

(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length …’

Rule 34 deals with the number of personal visits which a prisoner may receive and the number of personal letters which a prisoner may send and receive. Rules 35 and 36 are not relevant. Rule 37 reads as follows:

‘(1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.

Page 543 of [1993] 4 All ER 539

(2) A prisoner’s legal adviser may, subject to any directions given by the Secretary of State, interview the prisoner in connection with any other legal business out of hearing but in the sight of an officer.’

Rule 37A was added as a result of the decision of the European Court of Human Rights in Golder v UK (1975) 1 EHRR 524. Rule 37A reads as follows:

‘(1) A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33(3) of these Rules.

(2) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1) of this Rule.

(3) Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of such a prisoner as aforesaid shall be afforded reasonable facilities for examining him in connection with the proceedings, and may do so out of hearing but in the sight of an officer.

(4) Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings.’

Both rr 37(1) and 37A(1) refer to a prisoner who is a party to legal proceedings. It is common ground that both rules refer to legal proceedings which are already duly constituted. But by para 4 of Circular Instruction 23/87 that intention was spelt out in some detail.

Turning back to r 33(3) it is important to note that the power to stop a letter is conditional on the view formed by the governor or an officer deputed by him ‘that its contents are objectionable or that it is of inordinate length’. The word ‘objectionable’ is not defined in the 1964 rules. The context may be relevant. Rule 47 defines offences against discipline. Rule 47 covers various forms of violence used by prisoners, abusive language, smuggling and the like. At the time of the promulgation of the 1964 rules it was also a disciplinary offence if a prisoner made ‘any false and malicious allegation against an officer’ (para (12) of r 47) or repeatedly ‘made groundless complaints’ (para (16)). Subsequently, these two disciplinary offences were abolished.

It is now necessary to turn to Standing Order 5B, which came into effect on 1 April 1989. Paragraph 32(3) reads as follows:

‘Correspondence between an inmate and his or her legal adviser which relates only to legal proceedings to which the inmate is a party or to a forthcoming adjudication against the inmate carries special privileges under Prison Rule 37A(1) and Young Offender Institution Rule 14(1). The envelope carrying such correspondence should be marked ‘‘SO 5B 32(3)’’ and if outgoing may be handed in sealed by the inmate. Unless the Governor has reason to suppose that a letter purporting to be covered by this paragraph is not in fact covered, such a letter: (a) may not be read; (b) may not be stopped; (c) may be opened for examination only in the presence of the inmate concerned (unless the inmate declines the opportunity).’

Paragraph 35 provides as follows:

Page 544 of [1993] 4 All ER 539

‘Correspondence with a legal adviser, other than: (a) correspondence about legal proceedings to which the inmate is already a party or about a forthcoming adjudication, on which see paragraph 32(3) above, and (b) correspondence about an application to the European Commission of Human Rights or proceedings resulting from it, on which see Order 5F 7 may be read and may not contain matter mentioned in paragraph 34 above.’

It is unnecessary it to consider Standing Order 5F 7. It is, however, necessary to refer to the concluding words ‘matter mentioned in paragraph 34 above’. The latter paragraph includes a reference to ‘material which contains … (c) information which is known or believed to be false’. Paragraph 38 contains the following provisions which have been canvassed in argument:

‘(1) Subject to sub-paragraph (3) below, no copy shall be taken of a letter which the Governor is precluded from reading under paragraph 32(3) above.

(2) Subject to sub-paragraph (3) below, no copy shall be taken of any other letter to or from an inmate except … (vi) where a letter contains material which seriously casts doubt upon an inmate’s fitness for release on licence and, in particular, suggests that he or she would represent a risk if at large; and where the matter ought to be brought to the attention of (a) the local Review Committee, or (b) Headquarters to consider whether it should be laid before the Parole Board or Ministers …’

Against this background of primary legislation, subordinate legislation and administrative directions, it is now necessary to provide a brief narrative. On 2 July 1990 the appellant launched an application for leave to apply for judicial review. At that time the appellant was a prisoner detained at HM Prison Blundeston, Lowestoft, Suffolk, having been sentenced to a term of six years’ imprisonment in September 1987 in the Crown Court at Reading. Form 86A of RSC App A was completed on behalf of the appellant. He sought relief in respect of—

‘The stipulation contained in Rule 37A(1) Prison Rules 1964 and Standing Order 5B(35) and Circular Instruction 23/87 that a prisoner cannot have privileged uncensored correspondence with his legal adviser unless the inmate is a party to proceedings in which a writ has been issued on which he is named as a party.’

The thrust of the appellant’s case is set out in his application in the following terms:

‘The grounds of challenge to the Rules and the Order and Instruction in the present case, is that the respondent has purported to exercise powers which fundamentally alter the basis of the privileged relationship between a solicitor and client, and parliament has not granted those powers to the respondent which he purports to exercise. Nothing in the Prison Act 1952 confers on the respondent the power to alter the basis of the privileged relationship between solicitor and client, by insisting that a privileged relationship only exists AFTER the issue of the writ.’

The accompanying affidavit of the appellant was sworn on 2 July 1990. The appellant explained that he was engaged in a number of legal actions and that as a result it was necessary for him to have contact with various solicitors. He also had a number of actions planned. He said that he had to be very careful what he

Page 545 of [1993] 4 All ER 539

said to his solicitors in correspondence ‘because all such letters are subject to censorship behind the closed doors of the censors office’. He said he did not know whether his letters were copied: he assumed that their contents could be transmitted to the Home Office. The appellant described these arrangements ‘as a very great fetter on what I can say to my lawyers in writing before the issue of the writ’.

On 29 November 1990 Garland J granted the appellant leave to move for judicial review.

On behalf of the Secretary of State two affidavits were sworn and filed. The first was by Mr Caffarey, a grade 5 officer in the directorate of inmate administration section of the Prison Service, which is part of Home Office. The purpose of this affidavit was to describe the relevant regulatory provisions about prisoners’ correspondence and to explain their rationale. We will return to this affidavit when we consider the substantive arguments. The second affidavit was by the governor of HM Prison Blundeston. This affidavit briefly described the practice followed at that particular establishment in relation to correspondence between inmates and legal advisers.

The judgment of Webster J

On 22 October 1991 the appellant’s application for judicial review came before Webster J for hearing. The judge dismissed the application. Before us both sides suggested that the judgment did not do full justice to the way their cases were presented. Mr Fitzgerald said that the judge did not deal with the argument advanced on behalf of the appellant that as a matter of construction r 33(3) is ultra vires s 47(1) of the 1952 Act. Mr Jay said that the judge wrongly attributed to him, on the ultra vires issue, an argument that the court should embark on a balancing exercise in relation to the need for r 33(3). It seems to us not to be a useful exercise to attempt to disinter arguments at first instance. Instead we turn to the way in which the judge in fact decided the case.

Rightly the judge expressed his view as to the importance of the prisoners’ rights. He said:

‘The right to privilege is neither what has been properly described as a constitutional or fundamental right, like the right of access to the courts, nor a natural right, like the right of free association: it is a right established by case law. But as such it is not free standing. It is a right adherent to the a natural right of free association in a particular context, namely that of communications with legal advisers.’

The judge said that the rules may in principle properly restrict or regulate the right of a prisoner to correspond with his solicitor. After expressing this view the judge turned to the question ‘whether there is a power under s 47 to make a rule creating this particular restriction’. The judge then addressed the question whether under s 47(1) of the 1952 Act there was a power to make a rule such as r 33(3). The judge concluded that there was no power to make rules which are different from or more extensive than those which are reasonably necessary to carry out the statutory purpose. The judge regarded this as a question whether r 33(3) should be struck down on grounds of unreasonableness or irrationality. Relying on the affidavit of Mr Caffarey, the judge decided that a case of irrationality or unreasonableness was not made out. He dismissed the application. In deference to the views of the judge, who was most experienced in this class of work, we thought it right to set out the judge’s reasoning. In our view, however, the matter should be approached rather differently.

Page 546 of [1993] 4 All ER 539

The events subsequent of judgment

On 23 October 1991, the day after judgment, the appellant was transferred from HM Prison Shepton Mallet in England, where he was detained, to HM Prison Barlinie in Scotland for the purposes of attendance at criminal proceedings which remained outstanding in Scotland. On 10 April 1992 he was convicted and a term of seven years was imposed on him. That sentence was subsequently backdated to 29 November 1991, which was the date when he was due to be released from the sentence imposed in 1987 in the Crown Court at Reading. On 14 May 1992 the appellant was transferred to HM Prison Glenochil in Scotland, where he is still detained. It appears that the appellant has in the past applied to be transferred to HM Prison Leyhill in England. On 21 April 1993 he formally reapplied to be so transferred.

Locus standi

In view of the fact that the appellant is presently detained in Scotland, Mr Fitzgerald, who appeared for the appellant, first addressed us on the preliminary question of the appellant’s locus standi to pursue this appeal. Mr Fitzgerald submitted that by reason of the wider public law implications of the matter it is a proper case for this court to hear. For that proposition he was able to rely on the decision of the Court of Appeal in R v Dartmoor Prison Board of Visitors, ex p Smith [1986] 2 All ER 651 at 655, [1987] QB 106 at 115. Mr Jay, who appeared for the Secretary of State, accepted that this was a proper case for us to hear. In any event, Mr Fitzgerald pointed out that even as far as the appellant was concerned the case was not academic since the appellant may be transferred to England. We accepted Mr Fitzgerald’s submissions, and ruled that the appeal should proceed.

The interpretation of r 33(3)

Before us Mr Fitzgerald made a submission as to the interpretation of r 33(3) which was not made before the judge. He submitted that r 33(3) should not be interpreted as authorising the reading and stopping of correspondence between a prisoner and a solicitor. Mr Fitzgerald recognised the difficulties in the way of this submission. Rule 33(2) provides that a prisoner shall not be permitted to communicate with ‘any outside person’ without the leave of the Secretary of State. That prohibition is apt to cover communications between a prisoner and a solicitor. Rule 33(3) covers ‘every letter to and from a prisoner’. The language is general and unambiguous. The ordinary meaning of the language covers letters to and from a solicitor. Moreover, the restrictive interpretation advanced would have the strange result that correspondence about current legal proceedings is regulated by r 37A but that correspondence about contemplated legal proceedings is unregulated. That cannot be right. It follows that r 33(3) permits the reading and stopping of prisoners’ letters to solicitors, and letters from solicitors to prisoners. That brings us to the principal question in the case.

The ultra vires question

It is important not to lose sight of the precise nature of the question to be answered. The question is simply one of vires: is r 33(3) within the scope of the rule-making power which was conferred by s 47(1) of the 1952 Act? Nobody suggests that s 47(1) expressly authorises the making of a rule such as r 33(3). The question is whether s 47 by necessary implication authorises the making of a rule of the width and scope of r 33(3). The power is concisely and simply expressed in s 47(1) as the power ‘to make rules for the regulation and

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management of prisons’. Given that the matter to be considered is whether these words by necessary implication authorised the making of r 33(3), it is necessary to examine in the first place the scope of r 33(3).

The extent of the discretion under r 33(3)

The question is in what circumstances the discretion under r 33(3) may be exercised in respect of letters passing between a solicitor and client. It is plain that r 33(3) draws a distinction between (a) the power of prison authorities to read and examine letters and (b) the power to stop letters. Rule 33(3) creates an unrestricted power to read or examine ‘every letter’. On the other hand, the power to stop a letter is qualified by the purpose for which it may be exercised. Rule 33(3) provides that the discretion to stop a letter may be exercised ‘on the ground that its contents are objectionable or that it is of inordinate length’. If the governor or an officer deputed by him forms the view on reasonable grounds that the contents are objectionable or that the letter is of inordinate length the discretion to stop the letter may be exercised. The meaning of the words ‘inordinate length’ is clear. But an issue arose as to the meaning of the word ‘objectionable’. Mr Fitzgerald helpfully referred us to the legislative history of the r 33(3). And it is clear that a provision for reading a prisoners’ correspondence and stopping it has existed since 1898 (see r 76 of the Local Prison Rules 1899, SR & O 1899/322; r 52 of the Prison Rules 1933, SR & O 1933/809; r 75 of the Prison Rules 1949, SI 1949/1073). The concept of objectionability was therefore first introduced at a time when the curtailment of prisoners’ rights was far greater than it is today. In any event, the word ‘objectionable’ is in its ordinary sense of wide import. Prima facie it means unacceptable, and it is important it bear in mind that r 33(3) applies alike to a prisoner’s ordinary correspondence and to a prisoner’s correspondence with solicitors. Moreover, the word ‘objectionable’ must be read in context. It is difficult to avoid the conclusion that anything which in the view of the prison authorities constitutes a disciplinary offence under r 47 could be regarded as objectionable. And when the 1964 rules were promulgated the making of false and malicious allegations against an officer, or the repeated making of groundless complaints, were disciplinary offences. When those two disciplinary offences were abolished such conduct did not necessarily cease to be objectionable within the meaning of r 33(3).

Mr Jay submitted that both the power to read and examine letters and the power to stop letters are only intended to enable the prison authorities to take action, where there are no extant legal proceedings, in order ‘to satisfy themselves that it is, in fact, bona fide legal correspondence’. This submission does not distinguish between the two powers. It cannot be squared with the generality of the language which creates an unrestricted right to read and examine letters. It cannot be squared with the language which creates a qualified but wide power to stop correspondence on the ground of objectionability or prolixity. In our view Mr Jay’s submission on the interpretation of r 33(3) is unsustainable.

The extent of civil rights of prisoners

It is now necessary to examine the impact of r 33(3) on the civil rights of prisoners. This seems to us an important inquiry since, in relation to rule-making powers alleged to arise by necessary implication, it can fairly be said that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication. It is an axiom of our

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law that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication (see Raymond v Honey [1982] 1 All ER 756 at 759, [1983] 1 AC 1 at 10 per Lord Wilberforce). The present case is concerned with civil rights in respect of correspondence. An ordinary citizen has a prima facie right which protects the confidentiality of letters sent by or to him. That right is not dependent on the existence of a right of property; it derives from the law of confidentiality (see A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 658–659, [1990] 1 AC 109 at 281–282 per Lord Goff). It is obvious, however, that a power to make rules to regulate prisons must include a power to make some rules about prisoners’ correspondence. By necessary implication s 47(1) confers a power of rule-making which may limit a prisoner’s general civil rights in respect of the confidentiality of correspondence.

In ascending order of importance, in the context of this case, the next relevant civil right is based on the general duty of solicitors to keep confidential all communications between themselves and their clients. This is a rule founded on principles of equity, and binds third parties who knowingly receive the communication in breach of confidence. On the other hand, such rights and duties are not peculiar to the relationship of solicitor and client. They extend to the relationship of all professional men and their clients (see Parry-Jones v Law Society [1968] 1 All ER 177 at 178, [1969] 1 Ch 1 at 6–7). There is a presumption against statutory interference with vested common law rights. That must entail a presumption against a statute authorising interference with vested common law rights by subordinate legislation. But we incline to the view that it is not unreasonable to interpret s 47(1) as authorising by necessary implication some interference with this general right of confidentiality in accordance with the terms of r 33(3).

Now we turn to a principle of greater importance. It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v Honey [1982] 1 All ER 756 at 760, [1983] 1 AC 1 at 13 Lord Wilberforce described it as a ‘basic right’. Even in our unwritten constitution it must rank as a constitutional right. In Raymond v Honey Lord Wilberforce said that there was nothing in the Prison Act 1952 that confers power to ‘interfere’ with this right or to ‘hinder’ its exercise. Lord Wilberforce said that rules which do not comply with this principle would be ultra vires. Lord Elwyn-Jones and Lord Russell of Killowen agreed with Lord Wilberforce. It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not effect the importance of his observations. Lord Bridge held that rules in question in that case were ultra vires. He agreed with Lord Wilberforce on the basic principle. But he went further than Lord Wilberforce and said that a citizen’s right to unimpeded access can only be taken away by express enactment (see [1982] 1 All ER 756 at 762, [1983] 1 AC 1 at 14). Lord Lowry agreed with both Lord Wilberforce and Lord Bridge. It seems it us that Lord Wilberforce’s observations rank as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication.

Equally clearly established is the important principle that a prisoner’s unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves. The principle was laid down by the European Court of Human Rights in Golder v UK (1975) 1 EHRR 524. And it was clearly enunciated as part of our domestic jurisprudence by the Divisional Court in R v Secretary of State for the Home Dept,

Page 549 of [1993] 4 All ER 539

ex p Anderson [1984] 1 All ER 920 at 928–929, [1984] QB 778 at 794 where Robert Goff LJ, in giving the judgment of the court, said:

‘As we can see from Raymond v Honey itself, an inmate can initiate civil proceedings without making any formal complaint, simply by dispatching the necessary documents to the court by post. Such a communication cannot be stopped by the governor, and it is not therefore, under the standing orders, subject to the simultaneous ventilation rule (see order 5B(33)(a)). It must, we consider, be inherent in the logic of the decision of the House of Lords in Raymond v Honey that an inmate’s right of access to a solicitor for the purposes of obtaining advice and assistance with a view to instituting proceedings should be unimpeded, in the same way as his right to initiate proceedings by dispatching the necessary documents for that purpose by post is unimpeded.’

It follows that s 47(1) does not authorise the making of any rule which creates an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings. This too is a rule of fundamental importance.

It is now necessary to consider the relevance of the fact that the communications between a solicitor and client are protected in a way in which other professional relationships are not protected. Cross on Evidence (7th edn, 1990) p 428 summarises the rules as follows:

‘In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client’s consent, may not be given in evidence by the legal adviser in a judicial proceeding if made either: (1) to enable the client to obtain, or the adviser to give, legal advice; or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. Communications passing between the legal adviser or client and third parties need not be given in evidence by the legal adviser if they come within (2) above.’

Mr Jay has pointed out that these legal rights are subject to a number of exceptions. For example, the privilege is defeated if the legal advice was sought or given to assist in a fraud or illegality. Nevertheless, the prima facie legal professional privilege fulfils an important purpose: it encourages candour on the part of a client and this improves the prospect of the solicitor being able to give useful legal advice and effectively represent the client in legal proceedings. In D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 at 606, [1978] AC 171 at 231–232 Lord Simon of Glaisdale explained the importance of this legal privilege:

‘This process would be undermined if the trained advisers were compelled to divulge weaknesses in their cases arising from what they had been told by their lay clients. Indeed, the adversary system, involving professional assistance, could hardly begin to work effectively unless the lay client could be sure that his confidences would be respected. And a legal representative with only partial knowledge of his case would be like a champion going into battle unconscious of a gap in his armour. But it is only the rare case which has to be fought out in court. Many potential disputes, civil especially, are obviated or settled on advice in the light of the likely outcome if they had to be fought out in court. This is very much in

Page 550 of [1993] 4 All ER 539

the interest of society; since a lawsuit, though a preferable way of settling a dispute to actual or threatened violence, is wasteful of human and material resources. Thus similar considerations apply whenever a citizen seeks professional guidance from a legal adviser, whether with a view to undertaking or avoiding litigation, whether in arranging his affairs in or out of court.’

Legal professional privilege is therefore based on an important auxiliary principle which serves to buttress the cardinal principles of unimpeded access to the court and to legal advice.

It is not without significance that counsel could not refer us to a single instance where subordinate legislation was employed, let alone successfully employed, to abolish a common law privilege where the enabling legislation failed to authorise the abolition expressly. Parliament has frequently abolished the common law privilege against self-incrimination by primary legislation (see s 236 of the Insolvency Act 1986, s 2 of the Criminal Justice Act 1987 and s 72(1) of the Supreme Court Act 1981). When the provision for mutual disclosure of experts’ reports was introduced, it was feared, wrongly, we suggest, that such a provision might interfere with legal professional privilege. Accordingly, the necessary rule change was expressly authorised by s 2(3) of the Civil Evidence Act 1972. Subsequently, when the rule providing for exchange of witnesses’ statements was introduced, it was done by a simple rule change. It was then argued that the new rule was ultra vires as interfering with legal professional privilege. In Comfort Hotels Ltd v Wembley Stadium Ltd [1988] 3 All ER 53 at 57, [1988] 1 WLR 872 at 876 Hoffmann J dismissed this challenge on the ground that a mere procedural change was involved which did not interfere with the privilege. He described the privilege as ‘a strong one’ and it is clear from his judgment that he would have held the new rule ultra vires if it had interfered with legal professional privilege. These considerations do not by themselves provide the answer to the question before us but they do serve to underline the difficulties in the way of the submission that s 47(1) authorises by necessary implication r 33(3) as we have interpreted it. It will be a rare case in which it could be held that such a fundamental right was by necessary implication abolished or limited by statute. It will, we suggest, be an even rarer case in which it could be held that a statute authorised by necessary implication the abolition or limitation of so fundamental a right by subordinate legislation.

The objective need for r 33(3)

Given that at the heart of this case lies the question whether a necessary implication wide enough to validate r 33(3) can be established, it is important to consider whether an objective need for a rule such as r 33(3) in the interests of the regulation of prisons can be demonstrated. And we are considering that question only in respect of letters passing between a prisoner and solicitor. What needs to be justified are the conferment of the separate powers of (a) reading and examining letters and (b) stopping letters. The question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.

It will be convenient to deal first with the power to stop letters on the ground of prolixity. Mr Fitzgerald submitted that, while the provision of r 33(3) on letters of inordinate length may be perfectly reasonable as a general rule, it is inappropriate to letters between a prisoner and a solicitor. For example, a

Page 551 of [1993] 4 All ER 539

solicitor’s advice may be accompanied by a lengthy opinion from counsel or may enclose a proof of the prisoner’s account of events for approval by the prisoner. We did not understand Mr Jay to argue that this part of r 33(3) is appropriate to letters passing between solicitor and client. In any event, we would rule that it is impossible to conclude that there is by necessary implication an enabling power wide enough to save that part of r 33(3). That does not mean that the whole of r 33(3) is ultra vires. Applying a blue pencil test the words ‘or that it is of inordinate length’ can be excised. But of far greater importance is the fact that objectionability and prolixity requirements are in no way linked. Conceptually, the first requirement is severable from the second (see DPP v Hutchinson [1990] 2 All ER 836, [1990] 2 AC 783). If matters rested there, we would simply rule that the second requirement is ultra vires, leaving the remainder of r 33(3) intact.

That brings us to the more important issues whether a demonstrable need for an unrestricted power to read and examine letters and for a qualified power to stop letters on the ground of objectionability have been established. It seems to us that such an objective need has not been established. Mr Fitzgerald referred us to s 134 of the Mental Health Act 1983, which authorises substantial interference by the managers of a hospital with letters passing between a patient and persons outside the hospital. But by virtue of the s 134(3)(g) these inroads on the patient’s ordinary rights do not apply to letters passing between the patient and ‘any legally qualified person instructed by the patient to act as his legal adviser’. Making due allowance for the substantial differences between prisons and hospitals for the reception of mental patients, there seems to us force in Mr Fitzgerald’s analogy.

There is, however, a more telling indication that there was no objective need for a rule as wide as r 33(3). Rule 37A(1) deals with current civil proceedings brought by or against a prisoner. In that context r 37A(1) provides that correspondence between a prisoner and his legal adviser may only be read or stopped under r 33(3) ‘if the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings’. Rule 37A is unobjectionable as far as it goes. But what is the sense of the distinction between the prisoner’s rights of access to justice dependent on whether a writ has been issued or not? Judged in the context of a necessary implication into the rule-making power under s 47(1) we can see no material distinction. In R v Secretary for the Home Dept, ex p Anderson [1984] 1 All ER 920 at 928, [1984] QB 778 at 793 Robert Goff LJ stated the principle of a prisoner’s right of unimpeded access to a solicitor for advice and assistance in the context of ‘possible … civil proceedings’ (our emphasis). We respectfully agree. A distinction between current and possible legal proceedings seems extremely technical.

We will now consider the arguments contained in the affidavit of Mr Caffarey. From the point of view of the Prison Service he explains the rationale of r 33(3). In his affidavit Mr Caffarey states:

‘By way of policy justification the examination and reading of correspondence to and from inmates is undertaken to prevent its use to plan escapes or disturbances, and to detect and prevent offences either against the criminal law or against prison discipline, or in the interests of national security.’

In our judgment s 47(1) must be interpreted as conferring by necessary implication a power to make rules to achieve the stated objectives. We are satisfied that this implied power is wide enough to comprehend rules permitting

Page 552 of [1993] 4 All ER 539

the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it is in truth bona fide correspondence between a prisoner and a solicitor and to stop letters which fail such scrutiny. But it is a rule in much wider terms that needs to be justified; in particular the difference in the powers governing actual and contemplated litigation must be justified. When Mr Caffarey turns to the distinction in the rules between current and possible civil proceedings his explanation is less convincing. He stated:

‘If an inmate claims to be party to legal proceedings, not only can he be requested to provide evidence to corroborate that assertion but other sources can be checked to provide objective proof. Likewise, if an inmate is subject to a forthcoming adjudication then that matter is capable of straightforward verification. On the other hand, where an inmate is not party to proceedings, the potential for abuse is greater and thus the prime objective of securing control in a prison is weakened. This is because where an inmate is not party to proceedings, there are no external means of proof beyond what is said by the parties to the correspondence. In an ideal world, if it could be guaranteed that professional legal advisers would never be parties to criminal activities (whether deliberate or not) or otherwise abuse their position, the Respondent’s concern would not arise. The possibility does exist however, albeit in a small minority of cases, that complete unlimited access could lead to abuse.’

In our view this reasoning is an inadequate foundation for r 33(3) so far as it affects correspondence passing between a prisoner and a solicitor about possible civil proceedings. It does not attempt to establish a need for a general right to read as a matter of routine legal correspondence passing between a prisoner and a solicitor. It does not provide any justification for stopping letters on the ground of objectionability. Mr Caffarey’s affidavit goes no further than establishing the need for prison authorities to have the power to ascertain that purported exchanges between a prisoner and a solicitor are genuine communications between a client and solicitor, and to stop letters which fail such scrutiny. To that extent there is no dispute in this case. But there is nothing in Mr Caffarey’s affidavit, or in counsel’s arguments, which establish that objectively there is a need in the interests of the proper regulation of prisons for a rule of the width of r 33(3). And in passing it ought to be noted that at HM Prison Blundeston the practice is only to examine letters purportedly passing between a prisoner and a solicitor if there is reason to doubt that it is genuine correspondence between a solicitor and client.

Taking away basic rights by subordinate legislation

It is now possible to consider Mr Fitzgerald’s primary submission. He submitted that the words ‘may make rules for the regulation … of prisons’ do not by necessary implication authorise r 33(3) in the wide sense in which we have construed it. He submitted that r 33(3) authorises interference as a matter of routine with a prisoner’s right of unimpeded access to the courts and the inseparable right of unimpeded access to legal advice and assistance.

Mr Jay submitted that the decision of the House of Lords on the cross-appeal in Raymond v Honey points to an opposite conclusion. The appeal related to the prison governor’s refusal to allow an application to commit the governor for contempt of court to be sent to the court. The House of Lords unanimously held that a contempt was established. The cross-appeal was concerned with an

Page 553 of [1993] 4 All ER 539

earlier act of the governor, who refused to allow a letter from the prisoner to his solicitor to be forwarded. The Divisional Court held, and the House of Lords agreed, that the governor had reasonable cause under r 37A(1) to cause the letter to be opened. The question was whether the governor was entitled to stop the letter. The Divisional Court ([1981] 2 All ER 1084, [1981] QB 874) thought he was so entitled. Lord Wilberforce contented himself with saying that the correctness of this ruling was open to doubt (see [1982] 1 All ER 756 at 761, [1983] 1 AC 1 at 13). Lord Bridge said that the governor had no right to stop the letter (see [1982] 1 All ER 756 at 763, [1983] 1 AC 1 at 15). In both speeches the evidence is described as less than clear (see [1982] 1 All ER 756 at 761, 763, [1983] 1 AC 1 at 13, 15). On the facts of the case the House of Lords concluded that the prisoner had not established a contempt of court. But Lord Bridge expressly said that an unjustified stopping of a letter sent by a prisoner to his solicitor is capable of amounting to a contempt of court (see [1982] 1 All ER 756 at 763, [1983] 1 AC 1 at 15). Lord Wilberforce clearly took the same view. In these circumstances the decision on the cross-appeal in Raymond v Honey does not yield support to Mr Jay’s submission that r 33(3) does not impede a prisoner’s basic rights.

Mr Jay also sought support in a first instance decision in Scotland by Lord Caplan in Leech v Secretary of State for Scotland 1991 SLT 910. The appellant in the present case was the applicant for judicial review proceedings in Scotland. The question was when the prison authorities in Scotland were entitled to read and stop correspondence between the appellant, then a prisoner in Scotland, and his legal advisers about possible civil proceedings. Rule 74(4) of the Prison (Scotland) Rules 1952, SI 1952/565, is to the following effect:

‘Subject to the provisions of Rule 50(4) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable.’

This provision is similar, although not identical, to r 33(3) of our Prison Rules. Lord Caplan held that as a matter of interpretation r 74(4) covers correspondence between a prisoner and a solicitor. He then had to consider a submission that r 74(4) was ultra vires ss 39(1) and 42(1) of the Prison (Scotland) Act 1989, which authorise the making of rules for the regulation of prisons. After a review of Raymond v Honey and R v Secretary of State for the Home Dept, ex p Anderson Lord Caplan rejected the submissions. Lord Caplan said (at 917):

‘I am not aware of any indication in our law that a prisoner is entitled to communicate with his solicitor by the particular means of correspondence. What is essential is that the prisoner should have the opportunity for private communication with his solicitor. If the prisoner was not allowed to see his solicitor then of course having the opportunity to write to him may be a necessary right if he is to have any access at all to legal advice. That he should have some access to legal advice is of course intrinsic to his right to resort to the courts. In the present case the same statutory instrument which restricts freedom of correspondence provides in rule 76 that the prisoner is entitled to have visits from his solicitor and that such visits will be outwith the hearing of a prison officer. It follows that if a prisoner wants to consult a legal adviser he can arrange for him to visit the prison.’

The logic of this reasoning is that a rule which authorises a governor to withdraw the right to conduct legal correspondence entirely from prisoners

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would be lawful provided that the rules allow prison visits by the solicitor. A prisoner can choose his solicitor but he cannot choose his prison. If the prisoner is detained in a prison on the Isle of Wight and his solicitor practises in Newcastle the withdrawal of the prisoner’s right to correspond with his solicitor could seriously impede his access to justice. We do not accept the submission that Lord Caplan’s reasoning is applicable to the legal position in England.

It is part of the ratio decidendi of Raymond v Honey that s 47(1) of the 1952 Act does not authorise denial or interference with a prisoner’s right of unimpeded access to a court. It is part of the ratio decidendi of R v Secretary of State for the Home Dept, ex p Anderson that unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts forms an inseparable part of the prisoner’s right of access to the courts themselves and that s 47(1) does not authorise the creation of an impediment to the prisoner’s right of access to a solicitor. The question is whether r 33(3) creates an impediment to these basic rights. Frequently, it may not be possible for a solicitor to visit a prisoner as soon or as often as may be required. Moreover, correspondence will often by the most effective medium, eg in giving advice. A prisoner may wish to obtain legal advice about the conduct of those in authority over him. He may want to know whether he has a remedy against the police, individual prison officers, the governor of the prison or the Home Office. In Solosky v R (1980) 105 DLR (3d) 745 at 760 Dickson J described the impact of a right to read a prisoner’s correspondence as follows:

‘Nothing is more likely to have a “chilling” effect upon the frank and free exchange and disclosure of confidences, which should characterize the relationship between inmate and counsel, than knowledge that what has been written will be read by some third person, and perhaps used against the inmate at a later date.’

We respectfully agree. An unrestricted right to read correspondence passing between a solicitor and a prisoner must create a considerable disincentive to a prisoner exercising his basic rights as expounded in Honey v Raymond and R v Secretary of State for the Home Dept, ex p Anderson. In our view it creates a substantial impediment to the exercise of those basic right. And the right to stop letters on the grounds of objectionability or prolixity means that access to a solicitor by the medium of correspondence can be denied altogether. In our view r 33(3) is ultra vires so far as it purports to apply to correspondence between prisoners and their legal advisers.

Campbell v UK

So far we have approached this case from the point of view of settled principles of our domestic law. Since judgment was given at first instance in the present case the European Court of Human Rights has given a judgment in Campbell v UK (1993) 15 EHRR 137 which has a bearing on the present case. In that case a prisoner, who was serving a sentence in Scotland, complained that under prison rules the prison authorities opened and read as a matter of routine correspondence passing between the prisoner and his solicitor. The court held that this interference with his fundamental rights violated art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969). The court qualified this holding as follows (at 161):

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‘The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as “reasonable cause” will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.’

It may well be that read in context the judgment merely requires that the prison authorities should have reasonable grounds for suspecting that the letters are not in fact bona fide legal correspondence before they are entitled to open the letters. This is, however, a matter of detail as to the interpretation of Campbell v UK. The important point is that the decision, although not directly binding in England, reinforces a conclusion that we have arrived at in the light of the principles of our domestic jurisprudence.

Conclusion

By way of summary, we accept that s 47(1) by necessary implication authorises some screening of correspondence passing between a prisoner and a solicitor. The authorised intrusion must, however, be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence. In Solosky v R (1980) 105 DLR (3d) 745 at 761–762 Dickinson J explained this idea in the following concrete terms:

‘In my view the “minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege” should be interpreted in such manner that (i) the contents of an envelope may be inspected for contraband; (ii) in limited circumstances, the communication may be read to ensure that it, in fact, contains a confidential communication between a solicitor and client written for the purpose of seeking or giving legal advice; (iii) the letter should only be read if there are reasonable and probable grounds for believing the contrary, and then only to the extent necessary to determine the bona fides of the communication; (iv) the authorized penitentiary official who examines the envelope, upon ascertaining that the envelope contains nothing in breach of security, is under a duty at law to maintain the confidentiality of the communication.’

A rule along broadly similar lines would in our view by necessary implication be within the scope of the rule-making power under s 47(1). But r 33(3) is extravagantly wide. The very technique of dealing in one provision with ordinary correspondence and legal correspondence is flawed. In our view the Secretary of State strayed beyond the proper limits of s 47(1) when he made r 33(3). We would allow the appeal and grant a declaration the r 33(3) is ultra vires so far as it purports to apply to correspondence between prisoners and their legal advisers. It follows that r 33(2) is also ultra vires but we agree with Mr Jay that there is no need for a formal declaration to that effect. No further relief seems necessary.

Appeal allowed. Declaration accordingly.

Dilys Tausz  Barrister.

Secretary of State for Social Security v Thomas and others

[1993] 4 All ER 556

(Case C-328/91)

Categories:        EUROPEAN COMMUNITY; Social policy: SOCIAL SECURITY        

Court:        COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES (SIXTH CHAMBER)        

Lord(s):        JUDGES KAKOURIS (PRESIDENT OF CHAMBER), MANCINI, SCHOCKWEILER, DÍEZ DE VELASCO AND KAPTEYN        

Hearing Date(s):        ADVOCATE GENERAL TESAURO        

26 NOVEMBER 1992, 27 JANUARY, 30 MARCH 1993

European Economic Community – Equality of treatment of men and women – Social security – Severe disablement allowance – Invalid care allowance – Entitlement to severe disablement allowance and invalid care allowance dependent on pensionable age – Different pensionable age for men and women – Whether designation of different age limits for entitlement to severe disablement and invalid care allowances for men and women contrary to principle of equal treatment – Whether designation of different age limits for entitlement to severe disablement and invalid care allowances for men and women permitted as consequence of determination of different pensionable ages for men and women for purposes of granting old age and retirement pensions – Social Security Act 1975, ss 36(4)(d), 37(5) – Council Directive (EEC) 79/7, art 7(1)(a).

Sections 36 and 37 of the Social Security Act 1975 provided, respectively, for payment of ‘severe disablement allowance’ and ‘invalid care allowance’, which were non-contributory benefits, to persons who were disabled and incapable of work or who were regularly and substantially engaged in caring for a severely disabled person. Under ss 36(4)(d) and 37(5), however, a person who had attained pensionable age was not entitled to severe disablement allowance or invalid care allowance unless he was entitled thereto immediately before he attained pensionable age, which in the United Kingdom was 65 for men and 60 for women. The applicants were women who had claimed severe disablement allowance on giving up their employment as a result of incapacity after reaching pensionable age or who had claimed invalid care allowance after reaching pensionable age. Their applications were rejected by adjudication officers and social security appeals tribunals, but appeals by the applicants were allowed by Social Security Commissioners and upheld by the Court of Appeal on the ground that ss 36(4)(d) and 37(5) contravened Council Directive (EEC) 79/7, which provided for the progressive implementation of the principle of equal treatment for men and women in matters of social security. On appeal by the Secretary of State to the House of Lords, the House referred to the Court of Justice of the European Communities for a preliminary ruling under art 177 of the EEC Treaty the questions, inter alia, whether the discrimination as between men and women deriving from ss 36(4)(d) and 37(5) of the 1975 Act regarding entitlement to severe disablement allowance or invalid care allowance was justified under art 7(1)(a) of Directive 79/7, which allowed member states to exclude from its scope the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for ‘other benefits’.

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Held – Where, pursuant to art 7(1)(a)a of Council Directive (EEC) 79/7, a member state prescribed different retirement ages for men and women for the purposes of granting old age and retirement pensions, the scope of the permitted derogation in respect of ‘the possible consequences thereof for other benefits’ was limited to those forms of discrimination which existed under the other benefit schemes which were necessarily and objectively linked to the difference in retirement age (see p 575 b c and p 576 b c g, post).

Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584 at 599 (para 36), Beets-Proper v F Van Lanschot Bankiers NV Case 262/84 [1986] ECR 773 at 792 (para 38) and R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577 applied.

Per curiam. The grant of benefits such as severe disablement allowance or invalid care allowance constitutes, for women not in receipt of old age pension despite having attained the normal retirement age, an individual right which cannot be denied them on the ground that, statistically, their situation is exceptional by comparison with that of most women, the vast majority of whom in the United Kingdom receive an old age pension once they have attained the age of 60 (see p 576 c d, post).

Notes

For the principle of equal treatment for men and women in matters of social security, see 52 Halsbury’s Laws (4th edn) para 21·14.

As from 1 July 1992 ss 36 and 37 of the Social Security Act 1975 were replaced by ss 68 and 70 of the Social Security Contributions and Benefits Act 1992. For ss 68 and 70 of the 1992 Act, see 40 Halsbury’s Statutes (4th edn) 585, 589.

For the EEC Treaty, art 177, see 50 Halsbury’s Statutes (4th edn) 325.

Cases cited

Beets-Proper v F Van Lanschot Bankiers NV Case 262/84 [1986] ECR 773.

Cotter and McDermott v Minister for Social Welfare and A-G Case C-377/89 [1991] ECR I-1155.

Defrenne v SA Belge de Navigation Aérienne Sabena Case 149/77 [1978] ECR 1365.

EC Commission v Belgium Case C-229/89 [1991] ECR I-2205.

EC Commission v Italy Case 163/82 [1983] ECR 3273.

Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135, [1987] QB 129, [1986] 3 WLR 1038, [1986] ECR 1651, CJEC.

Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401, [1986] 2 WLR 780, [1986] ECR 723, CJEC.

Nimz v Freie und Hansestadt Hamburg Case C-184/89 [1991] ECR I-297.

R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577, [1992] ECR I-4297, CJEC.

Sotgiu v Deutsche Bundespost Case 152/73 [1974] ECR 153.

Page 558 of [1993] 4 All ER 556

Reference

By an order dated 27 November 1991 the House of Lords referred to the Court of Justice of the European Communities for a preliminary ruling under art 177 of the EEC Treaty four questions (set out at p 559–560, post) on the interpretation of art 7(1)(a) of Council Directive (EEC) 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The questions arose in proceedings pending in the House of Lords on appeal thereto by the Secretary of State for Social Security from the decision of the Court of Appeal (Slade, Stocker LJJ and Sir Denys Buckley) on 31 July 1990 (sub nom Thomas v Adjudication Officer [1991] 3 All ER 315, [1991] 2 QB 164) between Evelyn Thomas, Frances Iris Cooze, Joyce Beard, Sarah Murphy and Eleanor Ethel Morley and the adjudication officer concerning the grant to them of severe disablement allowance or invalid care allowance. Mrs Thomas, Mrs Cooze, Mrs Beard, Mrs Morley, Mrs Murphy, the Equal Opportunities Commission, the United Kingdom, the German government and the EC Commission submitted written observations to the court. Oral observations were presented to the court by Mrs Thomas, Mrs Cooze, Mrs Beard, Mrs Morley, Mrs Murphy, the Equal Opportunities Commission, the United Kingdom and the Commission. The language of the case was English. The facts are set out in the report for the hearing presented by the Judge Rapporteur.

I—FACTS AND WRITTEN PROCEDURE

1. In the United Kingdom s 36 of the Social Security Act 1975, as amended by the Health and Social Security Act 1984, provides for a non-contributory benefit called ‘severe disablement allowance’ which is granted to people who are disabled and incapable of work. Section 37 of the same Act provides for a non-contributory benefit called ‘invalid care allowance’ which is paid to a person who is regularly and substantially engaged in caring for a severely disabled person (either a relative or a person of any such other description as may be prescribed) and who is not gainfully employed.

2. Sections 36(4)(d) and 37(5) of the 1975 Act, as amended, provide that a person is not entitled to those benefits if he has attained pensionable age unless he was entitled to those benefits immediately before he attained it.

3. Section 27 of the Act defines pensionable age as 65 for men and 60 for women.

4. Article 7(1)(a) of Council Directive (EEC) 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security provides that the directive is to be without prejudice to the right of member states to exclude from its scope the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits.

5. Evelyn Thomas and Eleanor Ethel Morley gave up their employment as a result of incapacity after reaching pensionable age. Their claims for severe disablement allowance were rejected by the adjudication officer and the social security appeal tribunal on the ground that they were not entitled to that benefit immediately before attaining the age of 60. On appeal the Social Security Commissioner decided, in the Thomas case, that by virtue of the provisions of

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Directive 79/7, Mrs Thomas was entitled to that benefit. Mrs Morley’s appeal was dismissed by a different Social Security Commissioner.

6. Frances Iris Cooze, Joyce Beard and Sarah Murphy claimed invalid care allowance after attaining pensionable age. Their claims were rejected by the adjudication officer and the social security appeal tribunal on the ground that they were not entitled to that benefit when they attained pensionable age. The Social Security Commissioner hearing the appeals allowed them on the same grounds as those on which Mrs Thomas’s appeal was upheld.

7. The Court of Appeal dismissed the appeals of the Secretary of State for Social Security in the cases of Mrs Thomas, Mrs Cooze, Mrs Beard and Mrs Murphy and allowed Mrs Morley’s appeal (see sub nom Thomas v Adjudication Officer [1991] 3 All ER 315, [1991] 2 QB 164).

The Court of Appeal granted the application of the Equal Opportunities Commission to be joined as a party to the appeal in the case of Mrs Thomas.

The Court of Appeal held that the discrimination entailed by the British legislation between men and women in the granting of severe disablement allowance and invalid care allowance was not covered by art 7(1)(a) of Directive 79/7. In particular, it stated that art 7(1)(a) must be given an independent meaning, unaffected by variable national criteria, that the phrase ‘possible consequences’ in that provision being part of a derogation from individual rights conferred by Directive 79/7 must be construed strictly, and that that derogation must be in accordance with the principle of proportionality. Discrimination between men and women in social security schemes other than old age and retirement benefits was justified only when this was a necessary consequence of defining the qualifications for entitlement to old age or retirement benefits by reference to different age limits for men and women and only in a manner which was appropriate to meet this necessity, which was not the case here.

8. The Secretary of State for Social Security appealed against the Court of Appeal’s ruling to the House of Lords, which, by an order dated 27 November 1991, decided pursuant to art 177 of the EEC Treaty to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

‘1. Where pursuant to Article 7(1)(a) of Directive 79/7, on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security, a Member State preserves different pensionable ages for men and women for the purpose of granting old age and retirement pensions, is the scope of the derogation permitted by the words “possible consequences … for other benefits” in Article 7(1)(a) limited to: (a) provisions in schemes for those other benefits which are necessary to enable the schemes to operate consistently with the schemes for old age and retirement pensions without illogicality, unfairness or absurdity; or (b) provisions in schemes for those other benefits which the Member State has linked to provisions in old age and retirement pension schemes, in the exercise of its discretion, acting in accordance with the principle of proportionality; or (c) some other provisions, and if so which ones?

2. If the principle of proportionality applies, is the Member State required to show: (a) that the provision is appropriate and necessary to achieve the aim of the Member State; or (b) that the provision is appropriate and necessary to achieve the aim of Directive 79/7; or (c) both (a) and (b)

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above; or (d) that the provision was enacted for the purpose of reducing, minimising or limiting the overall discriminatory effects of providing different pensionable ages for men and women; or (e) that some other test is satisfied, and if so which one?

3. Is the Member State permitted by Article 7(1)(a): (a) to rely upon statistical data relating to male and female working and retirement patterns to justify the differential treatment of men and women: or (b) to rely upon the derogation notwithstanding that in a particular case the applicant for the benefit can show that although over pensionable age she does not in fact receive an old age or retirement pension and/or she would have been working but for the occurrence of the relevant risk (invalidity or severe disablement)?

4. Where national law provides that there shall be pensionable ages of 60 for women and 65 for men for the purpose of granting old age and retirement pensions and that there shall be an invalidity benefit scheme for persons of working age, does Directive 79/7 require a Member State to apply the same upper age limit (if any) for both men and women when defining the scope of the scheme for invalidity benefit?’

9. The order of the House of Lords was received at the court registry on 17 December 1991.

10. In accordance with art 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted on 6 April 1992 by Mrs Thomas, Mrs Cooze, Mrs Beard, Mrs Morley and Mrs Murphy and by the Equal Opportunities Commission, respondents in the main proceedings, represented by J A Lakin, solicitor and legal adviser, of the Equal Opportunities Commission, and by Anthony Lester QC, Mark Rowland, Judith Beale and Beverley Lang, barristers, and on 7 May 1992 by the Commission of the European Communities, represented by Karen Banks, a member of its Legal Service, acting as agent, on 14 May 1992 by the Government of the Federal Republic of Germany, represented by Ernst Röder, Regierungsdirektor at the Federal Ministry for Economic Affairs, acting as agent, and on 19 May 1992 by the United Kingdom represented by Lucinda Hudson of the Treasury Solicitor’s Department, acting as agent and assisted by Richard Plender QC.

11. Upon hearing the report of the Judge Rapporteur and the views of the Advocate General, the court decided to open the oral procedure without any preparatory inquiry.

12. By decision of 30 September 1992 taken pursuant to art 95(1) and (2) of the Rules of Procedure, the court assigned the case to the Sixth Chamber.

II—WRITTEN OBSERVATIONS SUBMITTED TO THE COURT

1. Evelyn Thomas, Frances Cooze, Joyce Beard, Sarah Murphy, Eleanor Morley and the Equal Opportunities Commission, respondents in the main proceedings, point out that the claimants are within the class of person to whom Directive 79/7 applies and that the statutory schemes in question are covered by the directive. The statutory pensionable age in the United Kingdom is discriminatory, as are the severe disablement allowance and invalid care allowance schemes. That discrimination may only be justified under art 7(1)(a) of the directive.

(a) The first question should be answered in the terms set out in alternative (a). The derogation from the fundamental principle of equality of treatment allowed by art 7(1)(a) must be interpreted strictly and in a manner which results

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in autonomous and uniform application, independent of national criteria. That derogation does not confer on member states the power to determine the scope of the derogation; the principle of proportionality is relevant only to the manner in which the member state implements the derogation and not to the interpretation of its scope. The aim of art 7(1)(a) is to exclude the determination of pensionable age for the purposes of granting old age and retirement pensions from the principle of equal treatment and the reference to ‘the possible consequences thereof for other benefits’ is ancillary and subordinate to the main purpose. Member states must show a necessary causal link between the discrimination as regards pensionable age and the discrimination which follows from it; that link should be objectively necessary for the proper operation of the discriminatory scheme and not merely desirable or convenient in the subjective view of the member state.

(b) As regards the second question, the respondents submit that the conditions set out in alternatives (a), (b) and (d) must be fulfilled.

According to the case law, any derogation from an individual right or from a fundamental principle of Community law is subject to the principle of proportionality (see Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135, [1987] QB 129 and Sotgiu v Deutsche Bundespost Case 152/73 [1974] ECR 153). The aim of the Community legislation in including the derogation must be the overriding and decisive factor and the member state’s goal should be to achieve that Community aim. Alternatives (a) and (b) of the question are not true alternatives, since the national aim is governed by the Community aim; alternative (d) is not a true alternative to (a) and (b) in so far as it seeks to know what is the aim in view of which the words ‘and the possible consequences thereof for other benefits’ were included in art 7(1)(a) of the directive. That provision is ancillary to the permission to retain discrimination in the age at which retirement pensions are granted and member states may not rely on it to extend the discriminatory effect to other social security areas.

(c) The third question should be answered in the negative; art 7(1)(a) cannot justify discriminatory treatment of an individual woman on the ground that, statistically, a woman’s working life ends on average five years before that of a man.

(d) The fourth question should be answered in the affirmative. The respondents state that the discrimination in question is not covered by art 7(1)(a). It is clear that the combination of a different pensionable age for men and women with another social security scheme to which the principle of equality of treatment applies is bound to produce some anomalies. The Secretary of State is wrong in arguing in the main proceedings that the benefits in question are designed for persons of working age and that a common age involves the fiction that all women between 60 and 65 are economically active; the individual right to equal treatment should be given precedence over the principle that benefit should be provided only to an age group the majority of whose members are economically active.

2. The United Kingdom states that severe disablement allowance and invalid care allowance are intended to replace income on which claimants might otherwise have counted whilst they were of working age and are therefore linked to pensionable age. For historical reasons, those two benefits have the special feature that a recipient who is entitled to them before attaining pensionable age carries on receiving them once that age has been reached. It is

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clear from preparatory parliamentary papers that those benefits are intended for persons who have suffered the insured risk whilst they were of working age. The link between the two benefits and pensionable age is also clear from the fact that recipients are awarded credits for pension contributions, those contributions being payable only by persons still under pensionable age.

(a) As regards the first question, the United Kingdom, whilst preferring the wording of alternative (b), considers that the statutory national provisions meet the descriptions in (a) and (b). Article 7(1)(a) provides for the right of the member states to exclude certain schemes from the scope of the directive; that right entails a power of appreciation, as is evident from the obligation under arts 7(2) and 8(2) periodically to review the matters which have been excluded and to inform the Commission of the reasons justifying the continued exclusion. That right includes the right to maintain differences in treatment which entail possible consequences stemming from the determination of different pensionable ages. As a derogation from the principle of equal treatment, that right is none the less subject to the principle of proportionality.

If the upper age limit for granting the relevant benefits were eliminated, they would no longer perform their purpose of replacing the income of those who suffered the insured risks. It would be impractical to grant the benefits to anyone who had suffered the insured risk before reaching retirement. The determination of a common upper age limit for men and women would also entail other differences in treatment.

The choice between one difference in treatment and another must be made by applying the principle of proportionality; the derogation from the principle of equality of treatment must be appropriate and necessary for achieving the aim in view, namely that of maintaining the consistency of its social security scheme as a whole and the avoiding of illogicality, unfairness or absurdities. In Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401 the court recognised that benefits under the state scheme which are geared to different pensionable ages for men and for women were covered by art 7(1)(a) of the directive.

The United Kingdom stresses the legal aspect of the link between the benefits in question and pensionable age, and points out that the same retirement age was chosen in all relevant fields and that the two benefits in question and retirement pensions form part of a coherent and rational system of benefits. The relevant benefits have always been equal in amount to pensions in a specific category; the recipients received credits towards state pensions and the determination of an upper age limit different from retirement age would lead to anomalies in so far as non-contributory benefits such as severe disablement allowance and invalid care allowance would be granted on more advantageous terms than contributory benefits.

Emphasising the factual aspects of that link, the United Kingdom points out that in determining the upper qualifying ages for the benefits in question, Parliament sought to fix those ages at the point when people tend to retire.

The words ‘and the possible consequences thereof for other benefits’ were added to Directive 79/7 upon the initiative of the United Kingdom, which was conscious of the existence of schemes of the kind at issue in this case. To refuse the member states any discretion in the matter would deprive the second phrase of art 7(1)(a) of its significance.

Accordingly, the reply to the first question should be as follows:

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‘Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security preserves the right of member states to determine, subject to the principle of proportionality, whether to maintain in force on a provisional basis statutory provisions which entail a difference in the treatment of men and women, in relation to other benefits, on the ground that such differences are the possible consequence of the determination of pensionable age for the purposes of granting retirement pensions.’

(b) Turning to the second question, the United Kingdom points out that the principle of proportionality requires the national court to weight the interest pursued by the rule in question, that is the derogating provision in art 7(1)(a) and the national rules based thereon, against the principle of equal treatment.

It follows from the case law that the aim in view is that of the member state. The hypothesis postulated in para (b) of question 2 is logically contradictory in so far as a provision which derogates from the principle of equal treatment cannot be appropriate and necessary to achieve the aim of Directive 79/7. If one supposes that in posing question 2(b), the House of Lords meant to inquire whether the member state is required to show that the national provision is appropriate and necessary to achieve the aim of art 7(1)(a), there is no difference between the responses to paras (a) and (b) of question 2.

The suggestion advanced in para (c) is also to be dismissed since no provision can both achieve the aim of the directive and that of a member state exercising its right of derogation.

The proposition in para (d) has no basis in the language of art 7(1)(a) or in the case law; so long as a difference is maintained in the pensionable ages of men and women, differences in treatment in respect of income replacement benefits cannot be eliminated. As has already been seen, the introduction of a single upper age limit would also lead to inequalities in treatment. The respondents in the main proceedings may prefer one form of inequality to another, but they cannot justify that preference on the ground that the preferred option has the purpose of limiting the overall discriminatory effects of separate pensionable ages.

Social security law proceeds by general rules and the application of the principle of proportionality does not prevent a member state from denying to certain individual women certain benefits to which they might be entitled if there existed a different common age limit.

The United Kingdom therefore submits the following reply to the second question:

‘Where it is alleged that a national rule is inconsistent with the principle of proportionality the party making that allegation must show that the national rule goes further than is appropriate and necessary to achieve the purpose served by that rule, in accordance with art 7(1)(a) of the directive.’

(c) With regard to the third question on retirement patterns, the United Kingdom points out the legal and factual links between the benefits in question and pensionable age. It is not a question of relying on statistical data relating to male and female retirement patterns to justify the difference in treatment. A member state is entitled, however, to present such data to its national courts in order to settle this question. Articles 7(2) and 8(2) require member states periodically to examine derogations and to inform the Commission of the

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reasons for maintaining them. The study of statistical data allows a member state to determine whether there are grounds for maintaining derogations.

The United Kingdom proposes an affirmative reply to the first limb of alternative (b) of the third question, which concerns a female claimant without a pension. A claimant not in receipt of an old age pension may well fall outside the category of persons for whom income replacement benefits are designed. Article 7(1)(a) is drafted in general terms and does not aim solely to exclude the possible consequences, for other benefits, of the determination of pensionable age for the purposes of granting old age and retirement pensions to a particular claimant.

The second part of question 3(b), concerning a female claimant who has worked beyond pensionable age, should also be answered in the affirmative. A social security scheme should identify a target group with a sufficient degree of accuracy and administrative workability, and for that purpose should specify a minimum ‘cut-off’ age after which a person cannot become eligible for the benefits. It would simply not be practical to determine in the case of each individual claimant whether he or she would be working but for the occurrence of the risk. Even the most sophisticated social security system does not cater for the needs of each person; to compensate for this, many systems, including the British system, provide for supplementary benefits, payable on the basis of need, to those who do not qualify for more particular provisions. Furthermore, to accept that a woman could prove that she would have worked but for the occurrence of the risk would create another inequality of treatment when that option would not be available to men.

For those reasons, the United Kingdom proposes that the reply to the third question should be as follows:

‘(a) In determining whether or how to exercise the right preserved for it under art 7(1)(a) of Directive 79/7 a member state may properly have regard to statistical data relating to male and female working and retirement patterns, for the purpose among others of ascertaining in the light of social developments whether there is justification for maintaining the exclusion concerned.

(b) A member state may exercise its right to exclude from the scope of Directive 79/7 the matters specified in art 7(1)(a) thereof notwithstanding that in a particular case the applicant for the benefit can show that although over pensionable age she does not in fact receive an old age or retirement pension and/or she would have been working but for the occurrence of the relevant risk.’

(d) In view of its replies to the first three questions, the United Kingdom submits that an answer to the fourth question is unnecessary. That question is not a question of the interpretation of an act of an institution of the Community within the meaning of art 177 of the Treaty but entails the application of Community law to the particular facts of the case, and indeed an assessment of the conformity of the national provision with Community law.

3. (a) The Government of the Federal Republic of Germany states that the choice of ‘possible consequences for other benefits’ in the second phrase of art 7(1)(a) of Directive 79/7 is left in principle to the member states, on the condition that they use their discretion reasonably and in accordance with the system of the relevant schemes. However, the British benefits in question provide benefits to those who have been unable to pursue an activity subject to compulsory

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insurance before reaching pensionable age because of the occurrence of certain risks, and therefore those benefits have a close and reasonable connection with the general pension scheme.

The Government of the Federal Republic of Germany therefore proposes to reply to the first question as follows:

‘The phrase “the possible consequences thereof for other benefits” refers to provisions which are reasonably linked to the schemes of old age and retirement pensions and are in accordance with those systems.’

(b) The second question should be answered by alternative (a); art 7(1)(a) envisages special circumstances justifying member states’ freedom to define their pensionable age independently.

(c) The Federal Government refrains from expressing an opinion on the third question; it considers that it is for English law to deal with individual cases of hardship.

(d) With regard to the fourth question, the Federal Government accepts that the age limits for invalidity benefits may, consistently with the general systems in question, be linked to age limits for old age pensions.

4. (a) As regards the first question, the Commission takes the view that a restrictive approach should be taken to the interpretation of the words ‘and the possible consequences thereof for other benefits’. The argument that the benefits in question are intended to replace income from work and that the age limit of 60 for women is justified by the fact that most women cease to work at that age is tantamount to penalising all women on the basis of an assumption that is not justified in all cases. In the judgment in Marshall’s case, the court recognised a woman’s right to go on working after the age at which she can claim a pension, and the Commission considers that an individual’s right to equal treatment should take precedence over arguments based on the comparison of sex-based statistics.

Any other solution would be tantamount to granting member states a limitless discretion to discriminate in their social security schemes by establishing a link between access to those benefits and the different pensionable ages.

The Commission shares the Court of Appeal’s view that member states must establish a sufficiently strong causative link between the permitted discriminations relating to old age or retirement pensions and the other discriminations they seek to justify. That criterion of necessity, despite the difficulties of defining what is ‘necessary’, is far preferable to one of reasonableness or proportionality put forward by the British authorities.

Accordingly, the Commission proposes that the reply to the first question should be that—

‘Where pursuant to art 7(1)(a) of Directive 79/7 a member state preserves different pensionable ages for men and women for the purposes of granting old age and retirement pensions, the scope of the derogation is permitted by the words “possible consequences … for other benefits” in art 7(1)(a) is limited to provisions in schemes for those other benefits which are necessary to enable the schemes to operate consistently with the schemes for old age and retirement pensions.’

(b) The second question is contingent on the answer to the first being based on the idea of proportionality, which is not the Commission’s approach.

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(c) The Commission does not propose to reply to the second part of the third question, which requires the court to go into the detail of a given national scheme and to trespass upon matters reserved for national courts. As regards the first part of the question, the Commission observes that the right to equal treatment is an individual right which cannot be reduced to a right to be treated fairly as a member of a group.

It therefore proposes the following reply to that question:

‘A member state is not permitted by art 7(1)(a) to rely upon statistical data relating to male and female working and retirement patterns which group all men in one category and all women in another in order to justify the differential treatment of men and women in relation to benefits other than old age or retirement pensions.’

(d) As regards the fourth question, the Commission points out that a member state is not entitled to link a discriminatory pensionable age for women with the age at which they are assumed no longer to form part of the working population. The Commission therefore proposes the following reply to the fourth question:

‘Where national law provides that there should be different pensionable ages for women and men for the purpose of granting old age and retirement pensions and that there shall be an invalidity benefit scheme for persons of working age, Directive 79/7 requires a member state to apply the same upper age limit (if any) for both men and women when defining the scope of the scheme for invalidity benefit.’

27 January 1993. The Advocate General (G Tesauro) delivered the following opinionb.

Mr President, Members of the Court,

1. The House of Lords has referred to the Court of Justice for a preliminary ruling four questions on the interpretation of Council Directive (EEC) 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

In particular, the national court wishes to establish whether the discrimination as between men and women deriving from the United Kingdom legislation regarding the grant of certain invalidity benefits is justified under art 7(1)(a) of the directive in question, which allows the member states to exclude from its scope ‘the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits’. The present case is specifically concerned with the scope of the derogation allowed by that provision with respect to ‘other benefits’, that is to say benefits other than old age and retirement pensions.

2. The ‘other benefits’ at issue in this case are the severe disablement allowance and the invalid care allowance. They are non-contributory benefits provided for by the Social Security Act 1975, as amended by the Health and Social Security Act 1984, which are payable, respectively, to people who are disabled and incapable of work (s 36) and to people engaged in caring for a severely disabled person (s 37).

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Pursuant to ss 36(4)(d) and 37(5) of the Act, a person is not entitled to those benefits if he has attained pensionable age (which is fixed as 60 for women and 65 for men), unless he was so entitled immediately before he attained that age.

3. It was precisely on the basis of those provisions that Evelyn Thomas, Eleanor Morley, Joyce Beard, Frances Cooze and Sarah Murphy were refused the severe disablement allowance and the invalid care allowance by the adjudication officer (whose decision was subsequently confirmed by the social security appeals tribunal). Even though they had had to leave their employment because they had become incapable of working (Thomas and Morley) or to enable them to look after severely disabled people (Beard, Cooze and Murphy), they had already reached pensionable age when they applied for the allowances but had not been entitled to them immediately before attaining that age. In fact, some of the women concerned had continued to work after attaining pensionable age and then stopped work because of supervening invalidity affecting them (Mrs Thomas and Mrs Morley) or another person (Mrs Beard) Mrs Cooze and Mrs Murphy had already stopped working before attaining the age of 60, but had done so specifically in order to enable them to assist their invalid husbands, whose entitlement to invalidity allowances had nevertheless been recognised after the dates on which they attained pensionable age.

With the exception of that lodged by Mrs Morley, which was dismissed, the appeals lodged by the other plaintiffs against the refusal to grant them severe disablement allowance or invalid care allowance were upheld by the competent Social Security Commissioner. The Court of Appeal then dismissed the appeals brought by the Secretary of State for Social Security in the cases of Mrs Thomas, Mrs Cooze, Mrs Beard and Mrs Murphy and upheld the appeal brought by Mrs Morley (see sub nom Thomas v Adjudication Officer [1991] 3 All ER 315, [1991] 2 QB 164).

4. The Secretary of State for Social Security brought an appeal against the judgment of the Court of Appeal before the House of Lords and the latter referred to the Court of Justice for a preliminary ruling four questions which may be summarised as follows: (a) What kind of link must there be between a social security benefit and a difference of pensionable ages for a discriminatory measure to fall within the scope of art 7(1)(a) of the directive? (b) Must the principle of proportionality be applied, and if so on the basis of what criteria, in determining whether (discriminatory) entitlement to a social security benefit is the consequence of a difference of pensionable ages? (c) May a member state rely on statistical data to justify differences of treatment as between men and women or invoke the derogation in question even where a woman is able to show that, despite having reached pensionable age, she is not in receipt of any pension? (d) Does Directive 79/7 require a member state that has maintained different pensionable ages to apply a single age limit (the higher) for the purposes of granting invalidity benefits?

5. By the first question, a ruling is sought from the court on the scope of the derogation provided for in art 7(1)(a), with reference to the expression ‘the possible consequences thereof for other benefits’. In particular, the national court asks whether that term embraces (a) the provisions necessary to enable the schemes for ‘other benefits’ to operate consistently with the schemes for old age and retirement pensions, without giving rise to illogical, unfair or absurd situations, (b) those provisions which the state, in the exercise of its discretion and in observance of the principle of proportionality, has linked to the

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provisions in old age and retirement schemes, or, finally, (c) some other provisions.

Let me say at the outset that it is common ground that the persons concerned are covered by the directive ratione personae, that the statutory schemes at issue fall within the scope of the directive ratione materiae and that the provisions which preclude the grant of the benefits at issue to women who have already attained pensionable age are discriminatory. In order to establish whether the fact that women may not apply for or obtain severe disablement allowance or invalid care allowance after the age of 60 whilst men may do so up to the age of 65 is a consequence of the different pensionable ages, it is therefore necessary, in the first place, to consider what causal connection should exist between a social security benefit and the difference of pensionable ages, that is to say the link on the basis of which the discriminatory provision may be regarded, in relation to the benefit in question, as resulting from the difference of pensionable ages within the meaning and for the purposes of art 7(1)(a) of the directive.

6. The parties agree that there must be a link between the difference of pensionable ages and the other (discriminatory) social security benefits which derive from it; they differ, however, regarding the scope of that causal connection.

The defendants and the Commission maintain that the derogation in question cannot be interpreted in a broad and subjective manner but must extend only to those consequences which are objectively and necessarily linked with the difference of pensionable ages. If that were not the case, the member states might well unilaterally link the pensionable age with entitlement to a social security benefit of another kind, with the result that they would be empowered to extend discrimination on grounds of sex.

The United Kingdom, on the other hand, contends that a member state is free to link the grant of a social security benefit to a difference of pensionable age, provided that it does so within reasonable limits and in observance of the principle of proportionality. Starting from the premise that so long as there are different pensionable ages it will not be possible to guarantee absolute equality of treatment as between men and women with regard to certain other social security benefits but there will always be discrimination or in any event anomalies, the United Kingdom contends that a member state is free to choose from the various possibilities the one that it considers most appropriate and apt to achieve the objectives which its social security system seeks to achieve. The United Kingdom therefore shows, on the basis of a number of examples, that there would still be discrimination between men and women even if a common age limit were adopted for entitlement to the benefits in question (in particular, the United Kingdom draws attention to the discrimination that would arise in respect of the credits granted to the recipients of the benefits in question to enable them to contribute to the state pension and to the fact that the introduction of a higher age limit would give rise to anomalies in that non-contributory benefits such as the ones at issue would be granted on more advantageous terms than contributory benefits) and adds that it is impossible unequivocally to define what is meant by necessary consequence. From the foregoing considerations, it infers that it is the very impossibility of finding solutions capable of totally eliminating discrimination that constitutes the link between the difference of pensionable ages and the invalidity benefits in question.

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7. That said, I should point out that the court has repeatedly held that the elimination of discrimination based on sex forms part of the fundamental rights the observance of which it has the duty to ensure (see Defrenne v Sabena Case 149/77 [1978] ECR 1365 at 1378 (paras 26–27)), and it also stated that—

‘in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view …’ (See Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135 at 159, [1987] QB 129 at 151 (para 38).)

It follows, as the court itself made clear, that the exception in art 7(1)(a) must be interpreted strictly (see Marshall v Southampton and South West Hampshire Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584 at 599, [1986] QB 401 at 420 (para 36) and Beets-Proper v F Van Lanschot Bankiers NV Case 262/84 [1986] ECR 773 at 792 (para 38)).

8. More recently, the court gave a ruling on the point at issue here in R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577, which was concerned with discrimination against men arising from the fact that they pay contributions for a longer period than women for a pension of the same amount—precisely because of the difference of pensionable age. In that judgment the court held that discrimination regarding contribution periods falls within the scope of the derogation provided for in art 7(1)(a) only ‘if … found to be necessary in order to achieve the objectives which the directive is intended to pursue by allowing member states to retain a different pensionable age for men and women’ (at 604 (para 13), my emphasis).

After stating that the member states are under an obligation periodically to examine matters excluded under para 1 (art 7(2)), and to inform the Commission of their reasons for maintaining any existing provisions (art 8(2)), the court considered the aim pursued by the directive through the inclusion of the derogation in question (at 604 (para 14)). It stated that, although the preamble to the directive does not state the reasons for the derogations which it lays down, it can be deduced from the nature of the exception contained in art 7(1) of the directive that the Community legislature intended to allow member states to maintain temporarily the advantages accorded to women with respect to pensions in order to enable them progressively to adapt their pension systems in this respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored (at 604 (para 15)).

9. The court’s dicta just referred to obviously concern not the consequences arising for other benefits from a difference of pensionable ages but rather the discrimination relating to the obligation to pay pension contributions and the calculation of them. It is also clear, however, that since the purpose of the derogation contained in art 7(1)(a) is to authorise the temporary maintenance of the advantages accorded to women with respect to pensions in order to enable the member states progressively to make an adjustment (culminating in the determination of a single pensionable age for both men and women), any other discrimination concerning social security benefits is a consequence of the difference of pensionable age and therefore falls within the scope of the above-mentioned

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derogation (on the same basis as that indicated by the court regarding discrimination in respect of contribution periods) only if and to the extent to which it is necessary to allow the member states to maintain different pensionable ages temporarily without significantly affecting the complex balance of the social security system, from the financial point of view in particular (as in the case of pension contributions), or the consistency of the system as a whole.

10. Let us consider the benefits at issue in this case. As has already been said, severe disablement allowance and invalid care allowance are non-contributory benefits, the grant of which is thus not based on contributions paid and which, therefore, from that point of view, have no impact on the financial mechanisms set up for the purpose. More generally, I must say that the view that the link between the difference of pensionable ages and the benefits in question is necessary to preserve the financial equilibrium of the entire social security system seems to me to be untenable.

And indeed, the statements made by the United Kingdom concerning the important financial consequences of, for example, fixing a common age limit for men and women (65 years) are undermined by the fact that, under the Social Security (Overlapping Benefits) Regulations 1979, SI 1979/597, the amount of an invalidity benefit taking the place of income is liable to be reduced by the amount of the old age pension. It is nevertheless true that, by contrast with old age pensions, invalidity benefits are not taxable; but the impact of this affects not so much the financial equilibrium of the pension system as the fact that the benefits in question received by women aged between 60 and 65 will be partially taxed, which is not the case for men in the same age bracket.

The United Kingdom also asserted that there would be an increased financial burden since people who would not normally be entitled to a pension might be entitled to one of the invalidity benefits at issue in this case. In that regard, two remarks will, I think suffice. The first is that it should not be forgotten that those people are covered by Directive 79/7. The second is that, whilst it is indeed possible that some people who have not paid sufficient contributions for entitlement to a pension may, on the other hand, obtain one of the benefits in question, it is also true, as the Commission stated without being challenged by the United Kingdom, that in such circumstances the people in question will not benefit from income support, which is granted, under the national legislation, to people who have insufficient resources to support themselves.

11. Nor does it seem to me to be reasonably arguable that the grant of the benefits in question to women who have already passed pensionable age is liable to prejudice the consistency of the social security system. In particular, the fact—mentioned by the United Kingdom—that the benefits in question are granted to replace lost income following the materialisation of a risk covered by them is not decisive, particularly since the fact that women acquire the right to a pension before men does not imply, as far as Community law is concerned, that they can be compelled to stop work before men. In other words, the determination of a different pensionable age cannot result in women being prevented from working for as long as men. (In that connection, see EC Commission v Italy Case 163/82 [1983] ECR 3273, in which the court stated that a domestic provision under which female workers, although fulfilling the requirements for entitlement to an old age pension, may choose to continue to work until they reach the same age as that laid down as the limit for men is to be regarded as one of the ‘most important working conditions’ (at 3287 (para 9);

Page 571 of [1993] 4 All ER 556

see also the opinion of Advocate General Sir Gordon Slynn in Marshall’s case [1986] 2 All ER 584 esp at 590, [1986] QB 401 at 408.) And it appears that the United Kingdom system actually allows retention of regular employment and deferral of the pension date for a maximum of five years after the attainment of pensionable age (s 27(5) of the Social Security Act 1975 provides in fact that a person is automatically deemed to retire five years after attaining pensionable age). It should be added that, according to information made available in the course of the procedure, almost 20% of women continue to work after attaining pensionable age.

And this is precisely the situation in which some of the women in the main proceedings find themselves: they continued working after reaching 60 years of age and it was only after that age that their invalidity or the need for them to care for a disabled person arose. Admittedly, the number of cases is small, since as a rule women cease working when they reach pensionable age, but nevertheless the situation that they represent is a reality that cannot be ignored. It is not therefore correct to treat all women as if they stop working as soon as they reach pensionable age, thus specifically penalising those women who continue to work after the age of 60. Nor does it seem to me to be proper to deny the benefits in question to women who, although having reached pensionable age, are not yet in receipt of a pension and have not yet requested one (as in the case of Mrs Cooze and Mrs Murphy).

12. In the light of the foregoing considerations, I am of the opinion that the discrimination arising from the United Kingdom provisions on invalidity benefits could be regarded as a consequence of the difference of pensionable ages within the meaning of art 7(1)(a) of the directive only if it were necessary to guarantee the consistency and financial equilibrium of the pension system, a requirement that does not appear to be satisfied in the present case. In any event it is for the national court to establish, in the light of the information produced, whether that condition is satisfied.

13. It seems to me that the solution at which we have thus arrived with respect to the first question makes it unnecessary to give a specific answer to the other three questions and I shall therefore advert to them only briefly.

14. The second question put to the court is whether, and if so according to what criteria, the principle of proportionality must be applied to a case such as the present one. Whilst it is true that in Johnston v Chief Constable of the Royal Ulster Constabulary Case 224/84 [1986] 3 All ER 135 at 159, [1987] QB 129 at 151 (para 38) the court stated that ‘in determining the scope of any derogation from an individual right such as the equal treatment of men and women … the principle of proportionality … must be observed’, it is also true, as shown by the foregoing considerations, that that principle is not important in itself for the purpose of determining what consequences are objectively linked with the difference of pensionable age (on this point, see the opinion of Mr Advocate General Van Gerven in R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577 at 593–602). It is therefore unnecessary to give an answer to the second question.

15. As regards the third question, which concerns the importance of statistical data, suffice it to observe here that, as is apparent from what I have already said in reply to the first question, since the right to equal treatment is an individual right it is not possible to adopt a generalised approach in disregard of the fact that many women continue to work after pensionable age. More generally, it must then be observed that, as is apparent from the case law of the

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court regarding equal treatment, discrimination against one sex or the other cannot be justified on the basis of statistics (see in particular Nimz v Freie und Hansestadt Hamburg Case C-184/89 [1991] ECR I-297 at 319 (para 14) and EC Commission v Belgium Case C-229/89 [1991] ECR I-2205 at 2228 (para 18)). It follows that, in principle, reliance on the derogation provided for in art 7(1)(a) of the directive cannot be based exclusively on the conduct of the majority of the members of a given group.

16. Finally, in its last question the House of Lords asks whether, where national law lays down different pensionable ages for men and women, Directive 79/7 requires a member state to apply the upper age limit laid down as the pensionable age (in this case, 65 years) for the purposes of invalidity benefits. Let me merely say that, having regard to the aim of the directive, in particular art 4 thereof, what is important is that women should be treated in the same way as men whose circumstances are the same. (In that connection, it is noteworthy that the court has consistently held that the group discriminated against must, pending legislative intervention, be treated in the same way and be subject to the same scheme as the other group whose circumstances are the same: see, inter alia, Cotter and McDermott v Minister for Social Welfare and A-G Case C-377/89 [1991] ECR I-1155 at 1185 (para 18).)

Accordingly, the grant of the invalidity benefits in question to everyone under 65 (common age) could, where the other conditions are fulfilled, be conditional upon the persons concerned not receiving or not yet having applied for an old age pension. The United Kingdom’s preoccupation that the grant of such benefits would thus be based on a pretence, since it cannot be proved that the woman in question would have continued working if invalidity had not supervened, seems to me to have no basis. On the contrary, the pretence lies rather in the fact of treating as a ‘pensioner’ a woman who is not in receipt of any pension and has in fact continued working after reaching 60, subsequently ceasing to work because of invalidity affecting her or another person whom she looks after.

17. In the light of the foregoing considerations, I suggest that the court reply as follows to the questions referred to it by the House of Lords:

‘1. Article 7(1)(a) of Council Directive (EEC) 79/7 is to be interpreted as meaning that, where a member state lays down different pensionable ages for men and women for the purposes of granting old age or retirement pensions, only such discrimination in relation to other social security benefits as is necessarily and objectively linked with the difference of pensionable age is permissible.

2. Article 7(1)(a) of Directive 79/7 does not authorise a member state to rely only upon statistical data concerning the working population in order to justify differences of treatment between men and women regarding benefits other than old age and retirement pensions.

3. Directive 79/7 requires the member states to treat in the same way people of different sexes who are in the same situation and therefore, where appropriate, to apply the same age limit for the grant of invalidity benefits.’

30 March 1993. THE COURT OF JUSTICE (Sixth Chamber) delivered the following judgment.

Page 573 of [1993] 4 All ER 556

1. By judgment of 27 November 1991, which was received at the court on 17 December 1991, the House of Lords referred to the court for a preliminary ruling under art 177 of the EEC Treaty four questions on the interpretation of art 7(1)(a) of Council Directive (EEC) 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

2. Those questions were raised in proceedings between Evelyn Thomas, Frances Iris Cooze, Joyce Beard, Sarah Murphy and Eleanor Ethel Morley and the adjudication officer concerning the grant to them of severe disablement allowance or invalid care allowance.

3. In the United Kingdom the Social Security Act 1975, as amended, provides for the grant of severe disablement allowance to people who are incapable of work and invalid care allowance to people engaged in caring for a severely disabled person. People who have attained retirement age, which is 65 for men and 60 for women, are not entitled to those benefits.

4. Mrs Thomas and Mrs Morley were refused severe disablement allowance on the ground that they had ceased employment because of invalidity after attaining retirement age. Similarly, Mrs Cooze, Mrs Beard and Mrs Murphy were refused invalid care allowance on the ground that they had applied for that benefit after attaining retirement age.

5. An appeal was lodged by the Secretary of State for Social Security against a judgment of the Court of Appeal, which had held that the United Kingdom legislation was incompatible with Directive 79/7 (see sub nom Thomas v Adjudication Officer [1991] 3 All ER 315, [1991] 2 QB 164), and the House of Lords decided to stay the proceedings until the Court of Justice had given a ruling on the following questions:

‘1. Where pursuant to Article 7(1)(a) of Directive 79/7, on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security, a Member State preserves different pensionable ages for men and women for the purpose of granting old age and retirement pensions, is the scope of the derogation permitted by the words “possible consequences … for other benefits” in Article 7(1)(a) limited to: (a) provisions in schemes for those other benefits which are necessary to enable the schemes to operate consistently with the schemes for old age and retirement pensions without illogicality, unfairness or absurdity; or (b) provisions in schemes for those other benefits which the Member State has linked to provisions in old age and retirement pension schemes, in the exercise of its discretion, acting in accordance with the principle of proportionality; or (c) some other provisions, and if so which ones?

2. If the principle of proportionality applies, is the Member State required to show: (a) that the provision is appropriate and necessary to achieve the aim of the Member State; or (b) that the provision is appropriate and necessary to achieve the aim of Directive 79/7; or (c) both (a) and (b) above; or (d) that the provision was enacted for the purpose of reducing, minimising or limiting the overall discriminatory effects of providing different pensionable ages for men and women; or (e) that some other test is satisfied, and if so which one?

3. Is the Member State permitted by Article 7(1)(a): (a) to rely upon statistical data relating to male and female working and retirement patterns to justify the differential treatment of men and women; or (b) to rely upon

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the derogation notwithstanding that in a particular case the applicant for the benefit can show that although over pensionable age she does not in fact receive an old age or retirement pension and/or she would have been working but for the occurrence of the relevant risk (invalidity or severe disablement)?

4. Where national law provides that there shall be pensionable ages of 60 for women and 65 for men for the purpose of granting old age and retirement pensions and that there shall be an invalidity benefit scheme for persons of working age, does Directive 79/7 require a Member State to apply the same upper age limit (if any) for both men and women when defining the scope of the scheme for invalidity benefit?’

6. Reference is made to the report for the hearing for a fuller account of the facts, the procedure and the written observations submitted to the court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

7. Before addressing the first question, it must be held, in limine, that the respondents in the main proceedings are persons covered by Directive 79/7 and that, in so far as they provide protection against the risk of invalidity, the statutory schemes at issue before the national court fall within art 3(1)(a) of that directive. Moreover, national legislation of the kind described by the national court, which denies women who have attained the age of 60 entitlement to the benefits in question whereas men continue to receive them until the age of 65, is discriminatory and may therefore be justified only under art 7(1)(a) of Directive 79/7, according to which the directive is to be without prejudice to the right of the member states to exclude from its scope the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits.

8. In considering the scope of the derogation provided for by that provision, it is to be noted, first, that, in view of the fundamental importance of the principle of equal treatment, which the court has reaffirmed on numerous occasions, the exception to the prohibition of discrimination on grounds of sex provided for in art 7(1)(a) of Directive 79/7 must be interpreted strictly (see the judgments in Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584 at 599, [1986] QB 401 at 420 (para 36) and Beets-Proper v F Van Lanschot Bankiers NV Case 262/84 [1986] ECR 773 at 792 (para 38)).

9. Next, in its judgment in R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577 at 604 (para 15), the court held that, although the preamble to Directive 79/7 does not state the reasons for the derogations which it lays down, it can be deduced from the nature of the exceptions contained in art 7(1) of the directive that the Community legislature intended to allow member states to maintain temporarily the advantages accorded to women with respect to retirement in order to enable them progressively to adapt their pension systems in that respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored. The court also held in that judgment that those advantages include the possibility for female workers to qualify for a pension earlier than male workers, as envisaged by art 7(1)(a) of Directive 79/7.

10. In that judgment, which was concerned not with the ‘possible consequences … for other benefits’ of setting different retirement ages for men

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and women but with discrimination regarding contribution periods, the court interpreted art 7(1)(a) as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old age and retirement pensions and also such forms of discrimination as are necessarily linked to that difference.

11. There must, for the same reasons, be a similar link as regards the possible discriminatory consequences for other benefits of the determination of a different statutory retirement age according to sex for the purposes of granting old age and retirement pensions.

12. It follows that forms of discrimination provided for in benefit schemes other than old age and retirement pension schemes can be justified, as being the consequence of determining a different retirement age according to sex, only if such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes.

13. Although it is for the national court, in preliminary ruling proceedings, to establish whether such a necessity exists in the specific case before it, the Court of Justice, which is called upon to provide the national court with worthwhile answers, has jurisdiction to give guidance based on the documents before the national court and the written and oral observations which have been submitted to it, in order to enable the national court to give judgment.

14. As regards the requirement of preserving financial equilibrium as between the old age pension scheme and the other benefit schemes, it should be noted that the grant of benefits under non-contributory schemes, such as severe disablement allowance and invalid care allowance, to persons in respect of whom certain risks have materialised, regardless of the entitlement of such persons to an old age pension by virtue of contribution periods completed by them, has no direct influence on the financial equilibrium of contributory pension schemes.

15. Furthermore, as the Advocate General shows in para 10 of his opinion, discrimination between men and women under non-contributory schemes, such as those of the severe disablement allowance and the invalid care allowance, is unnecessary to preserve the financial equilibrium of the entire social security system, particularly since the national rules contain provisions to prevent overlapping between benefits such as severe disablement allowance or invalid care allowance and the old age pension and, in fact, the grant of those benefits takes the place of benefits paid under the other non-contributory schemes, such as benefits paid to people who have insufficient resources to support themselves.

16. As regards preservation of the consistency between schemes such as those of the severe disablement allowance and the invalid care allowance, on the one hand, and the pension scheme on the other, the United Kingdom’s argument that those benefits are intended to replace income in the event of materialisation of the risk, far from generally precluding the grant of such benefits to women who have attained retirement age, should, on the contrary, justify it in circumstances such as those at issue in the main proceedings.

17. In its judgment in Marshall’s case, cited above, the court held that women are entitled to go on working beyond the qualifying age for an old age pension, that is to say at least until the age at which a man is supposed to retire.

18. Where women have continued to work, as they may under the national legislation, after attaining the normal retirement age for women and before

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attaining the normal retirement age for men, or do not yet receive benefits under the old age pension scheme despite their having attained the normal retirement age, they are entitled, in the event that the insured risk materialises, to receive benefits such as severe disablement allowance or invalid care allowance.

19. As to the United Kingdom’s argument that the vast majority of women receive an old age pension once they have attained the age of 60, suffice it to say that the grant of benefits such as severe disablement allowance or invalid care allowance constitutes, for women who are not yet in receipt of old age pension despite their having attained the normal retirement age, an individual right which cannot be denied them on the ground that, statistically, their situation is exceptional by comparison with that of most women.

20. For these reasons, the answer to the first question submitted by the House of Lords must be that where, pursuant to art 7(1)(a) of Directive 79/7, a member state prescribes different retirement ages for men and women for the purposes of granting old age and retirement pensions, the scope of the permitted derogation, defined by the words ‘possible consequences thereof for other benefits’, contained in art 7(1)(a) is limited to the forms of discrimination existing under the other benefit schemes which are necessarily and objectively linked to the difference in retirement age.

21. In view of the answer given to the first question, it is unnecessary to answer the other three questions.

Costs

22. The costs incurred by the Government of the Federal Republic of Germany, the United Kingdom and the Commission of the European Communities, which have submitted observations to the court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, the court (Sixth Chamber), in answer to the questions referred to it by the House of Lords, by judgment of 17 December 1991, hereby rules: where, pursuant to art 7(1)(a) of Directive 79/7, a member state prescribes different retirement ages for men and women for the purposes of granting old-age and retirement pensions, the scope of the permitted derogation, defined by the words ‘possible consequences thereof for the other benefits’, contained in art 7(1)(a) is limited to the forms of discrimination existing under the other benefit schemes which are necessarily and objectively linked to the difference in retirement age.

Carolyn Toulmin  Barrister.

Hughes and another v Greenwich London Borough Council

[1993] 4 All ER 577

Categories:        LANDLORD AND TENANT; Security of Tenure: HOUSING        

Court:        HOUSE OF LORDS        

Lord(s):        LORD TEMPLEMAN, LORD BRIDGE OF HARWICH, LORD LOWRY, LORD BROWNE-WILKINSON AND LORD SLYNN OF HADLEY        

Hearing Date(s):        26–29 APRIL, 21 OCTOBER 1993        

Housing – Local authority houses – Security of tenure – Tenancies which are not secure tenancies – Premises occupied in connection with employment – Local authority employee whose contract of employment ‘requires him to occupy the accommodation for the better performance of his duties’ – Headmaster of special boarding school for children with physical handicaps – Headmaster and wife living in headmaster’s house in school grounds – Headmaster and wife claiming right to buy headmaster’s house – Whether headmaster required to occupy accommodation for better performance of his duties – Whether headmaster and wife secure tenants – Whether headmaster and wife having right to buy house – Housing Act 1985, ss 79, 118, Sch 1, para 2(1).

The first respondent was until his retirement the headmaster of a special boarding school for children with physical handicaps. His contract of employment provided for him to receive free board and lodging. He and his wife lived in a house which had been purpose built for the headmaster’s accommodation within the school grounds. When he retired the respondents claimed to be secure tenants under s 79a of the Housing Act 1985 and entitled to acquire the freehold of the house by virtue of s 118(1)b of that Act, under which secure tenants had the right to buy the freehold of houses occupied under secure tenancies. The education authority which employed the first respondent and in which the freehold of the school and the headmaster’s house was vested denied that the respondents had the right to buy and claimed that the first respondent had been an employee of a local authority whose contract of employment ‘require[d] him to occupy the accommodation for the better performance of his duties’ and therefore by virtue of para 2(1)c of Sch 1 to the 1985 Act the respondents were not secure tenants. The respondents sought a declaration that they were entitled to purchase the freehold of the house. The judge granted the declaration, holding that the first respondent could have fulfilled all the requirements of his employment if he had lived near rather than in the school grounds. The Court of Appeal dismissed an appeal by the authority, which then appealed to the House of Lords, contending that a term was to be

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implied in the first respondent’s contract of employment that the headmaster of the school was required to occupy the headmaster’s house for the better performance of his duties.

Held – In order for a term to be implied in a contract there had to be a compelling reason for deeming that term to form part of the contract and on the facts there was no such compelling reason since it was not essential that the first respondent should live in the headmaster’s house in order to do his job. It was not sufficient that the first respondent could better perform his duties by living in the headmaster’s house if it was not essential for the performance of his duties that he did so. Accordingly, the first respondent was not by implication required to occupy the headmaster’s house but, even if he had been, he was not required to do so for the better performance of his duties since it was clear that the authority, his employer, was providing a facility but not imposing an obligation, and, even if the authority had been imposing an obligation, the obligation could have been attributed simply to the expectation that the headmaster would live in the authority’s house as the designated way of enjoying the free lodging to which he was entitled. It followed that the respondents were secure tenants who had the right to buy the headmaster’s house under the 1985 Act. The appeal would therefore be dismissed (see p 579 c d, p 583 d f, p 584 b d and p 585 b e h j, post).

Notes

For local authority tenants’ right to buy their homes, see 27 Halsbury’s Laws (4th edn) paras 886–909, and for cases on the subject, see 31(3) Digest (2nd reissue) 618–620, 12542–12552.

For the Housing Act 1985, ss 79, 118, Sch 1, para 2, see 21 Halsbury’s Statutes (4th edn) (1990 reissue) 115, 148, 571.

Cases referred to in opinions

Devonald v Rosser & Sons [1906] 2 KB 728, [1904–7] All ER Rep 988, CA.

Dyer v Dorset CC [1989] QB 346, [1988] 3 WLR 213, CA.

Glasgow Corp v Johnstone [1965] 1 All ER 730, [1965] AC 609, [1965] 2 WLR 657, HL.

Liverpool City Council v Irwin [1976] 2 All ER 39, [1977] AC 239, [1976] 2 WLR 562, HL.

Luxor (Eastbourne) Ltd v Cooper [1941] 1 All ER 33, [1941] AC 108, HL.

Northern Ireland Comr of Valuation v Fermanagh Protestant Board of Education [1969] 3 All ER 352, [1969] 1 WLR 1708, HL; rvsg in part [1970] NI 89, NI CA.

Reilly (J M) Ltd v Belfast Corp [1970] NI 68, NI CA.

Appeal

Greenwich London Borough Council (as successors to the Inner London Education Authority) appealed with the leave of the Appeal Committee of the House of Lords given on 18 November 1992 from the decision of the Court of Appeal (Lord Donaldson MR, Balcombe LJ and Sir John Megaw) (24 HLR 605) delivered on 20 May 1992 dismissing its appeal from the order made by Judge Kennedy QC in the Haywards Heath County Court on 7 March 1990 declaring that the respondents, John Pryce Hughes and Hilary Ann Hughes, were entitled by virtue of Pt V of the Housing Act 1985 to acquire the freehold of a dwelling house known as ‘Cedars’ situated in the grounds of Staplefield Place School,

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near Haywards Heath, Sussex. The facts are set out in the opinion of Lord Lowry.

Frederic Reynold QC and Paul Stewart (instructed by D N Atkinson) for the appellant council.

Michael Hart QC and Christopher Tidmarsh (instructed by Lee Bolton & Lee, agents for I Poole, Haywards Heath) for Mr and Mrs Hughes.

Their Lordships took time for consideration.

21 October 1993. The following opinions were delivered.

The Judge Rapporteur (Fernand Schockweiler) presented the following report for the hearing.

LORD TEMPLEMAN. My Lords, for the reasons given by my noble and learned friend Lord Lowry, I would dismiss this appeal.

LORD BRIDGE OF HARWICH. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Lowry. I agree with him and for the reasons which he gives I, too, would dismiss this appeal.

LORD LOWRY. My Lords, this is an appeal from the order of the Court of Appeal (Lord Donaldson MR, Balcombe LJ and Sir John Megaw) (24 HLR 605) made on 20 May 1992 and dismissing the appeal of the appellant council, as the successors of the Inner London Education Authority (ILEA), from an order made in the Haywards Heath County Court by Judge Kennedy QC on 7 March 1990 declaring that the respondent applicants, Mr and Mrs J P Hughes, were entitled by virtue of Pt V of the Housing Act 1985 to acquire the freehold of a dwelling house known as ‘Cedars’ and situated in the grounds of Staplefield Place School, near Haywards Heath, Sussex.

The question for decision is whether Mr Hughes was a secure tenant of Cedars and accordingly had a right under ss 79 and 118 of the 1985 Act to acquire the freehold of that house or whether, as the appellant council contend, he was precluded from doing so by para 2(1) of Sch 1 to that Act, which provides that a tenancy is not a secure tenancy if the tenant is, inter alia, an employee of the landlord (as Mr Hughes was) and his contract of employment requires him to occupy the dwelling house for the better performance of his duties. Mr Hughes’s contract of employment did not contain any express requirement that he should occupy the dwelling house or that he should do so for the better performance of his duties, but it is the contention of the appellant council that it was an implied term of the contract that he was required to occupy Cedars for the better performance of his duties.

Mr Hughes was until his retirement on 31 December 1989 the headmaster of Staplefield Place School, a special boarding school which originally catered for girls with physical handicaps. Since January 1956 he had been employed by the same employer, London County Council, as a resident teacher in a different school and in July 1958 he was appointed headmaster of the school by his employer, whose education officer wrote to him on 30 July as follows:

‘Dear Sir,

Staplefield Place School

I write to inform you that the Council has appointed you headmaster of this school, at a salary of £914·12s. a year. You will receive free board, lodging and laundry. The appointment will take effect from 8 September

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1958 and is subject to these conditions:—(1) it is subject to three months’ notice on either side expiring at the end of a term, except that four months’ notice shall be required in the summer term (for this purpose the spring summer and autumn terms shall end on 30 April, 31 August, and 31 December, respectively); (2) the appointment is for full-time service exclusively in the capacity of a teacher. You will be required to give your whole time to the duties of your office and will not be allowed to take any other business or paid employment. Any fees received by you as a witness or in any other capacity shall be paid to the Council; (3) the appointment will be subject to the Council’s standing orders, regulations and other provisions in force from time to time. If you accept this appointment, will you please sign the form of acceptance overleaf and return it to me. No alteration may be made in the form of acceptance. A copy of this letter is attached for retention by you. Will you please start work on 8 September, 1958.

Yours faithfully,

[signed] W. F. Houghton

Education Officer.’

Mr Hughes accepted this offer on 2 August 1958 by signing the form of acceptance indorsed on the letter:

‘I accept the appointment specified overleaf, subject to the terms and conditions stated and to any other terms and conditions which the Council may impose.’

(Nothing turns on the rather unusual concluding words of the form of acceptance.)

The school was reorganised to cater additionally for younger children and to take boys as well as girls and on 7 July 1959 the council renewed Mr Hughes’s appointment at a slightly higher salary on his ‘existing conditions of service’ with effect from 1 January 1960.

To begin with, Mr and Mrs Hughes lived in the main school building but, after Mrs Hughes had become pregnant, the council at some time in 1959 accommodated them in a house in the school grounds which had once been the gardener’s cottage. This house was not entirely suitable, since it was damp, and Mr Hughes discussed with the employer the possibility of his buying a house in the village which was for sale and living there instead. The clerk to the school governors was aware of the unsatisfactory state of the cottage and told Mr Hughes that the council was thinking of building a headteacher’s house in the school grounds. Improvements were made to the cottage. Then, in June 1961, the council’s education committee resolved that a home for the headmaster should be built in the school grounds and a specification was approved for a detached three-bedroom house with garage. The house, known as Cedars, was completed in July 1963 and Mr and Mrs Hughes moved in, having in the meantime remained in the cottage. Cedars was about 400 yards from the school building, separately fenced, invisible from the school and down a drive not used by the pupils. It was therefore not within the school curtilage and was not caught by a different exception, namely para 5(1) of Sch 5 to the 1985 Act, to the tenant’s right to buy: cf Dyer v Dorset CC [1989] QB 346.

In 1967 the school was reorganised again to take more children with additional educational handicaps and on 28 June 1968 ILEA, which had become the employer, sent Mr Hughes a further letter of reappointment. As Lord

Page 581 of [1993] 4 All ER 577

Donaldson MR has observed, this letter, when its offer was accepted, constituted the relevant contract of employment (see 24 HLR 605 at 606). In fact none of the contracts differed in any material respect. The 1968 letter was signed by ILEA’s education officer. It stated:

‘I am pleased to inform you that the Inner London Education Authority has appointed you to the headship of this [Staplefield Place] school with effect from and including 1 September 1967. Your appointment will be subject to the conditions set out overleaf. If you are prepared to accept appointment on these conditions will you be good enough to sign the form of acceptance on one copy of this letter and return the complete letter to this office. No alteration may be made in the letter or in the form of acceptance. The second copy of this letter is for you to keep. [Details of salary were then set out.] In addition you will receive free emoluments of board, lodging and laundry, but excluding garage. The free heating and lighting provided will be limited by the provisions of the Authority’s Fuel and Light Scheme (a copy is attached).’

None of the ‘conditions set out overleaf’ were, or were alleged to be, relevant to the question now in dispute.

On 6 April 1987 Mr Hughes informed ILEA’s education officer of his intention to retire some time during 1988, when he would have completed 30 years as headmaster of the school, and also gave warning that, having sought the advice of the National Association of Head Teachers, he intended to take advantage of his statutory rights as a secure tenant and to remain in his house on the school site. The letter concluded:

‘Having spent more [sic] of my professional career in the boarding school service of the LCC and ILEA I am well aware that this could result in difficulties for the Authority which I am anxious to avoid or minimise. To this end I would be prepared to consider moving to suitable alternative off-site accommodation that the Authority might be able to offer. At this present moment, there is one staff house 122 Aspen Walk, Haywards Heath which is unoccupied and although this is not comparable to my present accommodation I would be prepared to consider a transfer there at any time up to the date of my eventual retirement. I draw this fact to your attention at this stage because you may feel it advisable to bear my intentions in mind before this house is re-allocated to any other member of staff. The Principal Houseparent has resigned and will leave the Authority’s service on May 9th. The vacant position will be advertised as a resident or non-resident post and the Personnel Department will need to be advised as to whether applicants wishing to be resident should be offered either the bed-sitting room occupied by the present Principal or the house. I can assure that I have the best interests of the school at heart and it is because I would wish to minimise any difficulties in the future that I am raising the matter at this time. You will be aware of course that the long term future of the school is at present under review and this may also have some relevance to the situation.’

Inconclusive correspondence followed and eventually ILEA, while offering assistance with Mr Hughes’s housing problem on his retirement, denied that he enjoyed security of tenure or the right to buy.

Page 582 of [1993] 4 All ER 577

In 1988 a decision was taken to close down the school and to use the buildings as a residential and teaching annex of another special boarding school. This took effect the next year, when Mr Hughes’s appointment was formally terminated. In May 1988 Mr and Mrs Hughes served on ILEA a notice pursuant to Pt V of the 1985 Act claiming a right to buy the freehold of Cedars. ILEA ultimately rejected this application on the ground that Mr Hughes’s contract of employment ‘require[d] him to occupy the accommodation for the better performance of his duties’, and in February 1989 Mr and Mrs Hughes issued an originating application in the Haywards Heath County Court for a declaration that they were entitled to purchase the freehold of Cedars.

The circuit judge, who delivered a most careful judgment, reviewed and analysed the evidence and concluded:

‘The “requirement” then must be, as both parties argued and agreed, and as I find, for the better, that is the necessary, that is essential to, the performance of [Mr Hughes’s] duties and for no other reason. Any argument that for convenience, for reasons of prudent property management, or simply as a requirement imposed at will by the employer, but which is not directly related to such performance, cannot avail the [appellant council]. I was referred first by both counsel to the authorities and to the principles concerning the implication of such a term for reasons of efficacy of the contract, also to the “of course” or “officious bystander” test, also to the argument based on necessary implication of law in a contract such as this—the “incomplete contract” argument, as I call it in shorthand. At the risk of oversimplification, which I dare to blame partly on the succinct completeness of the arguments I heard, I have tried to test them all against an issue which I formulate as follows. Look at this particular school as of 1967—the latest contract and the relevant one. Postulate all reasonable foreseeable duties properly requirable of [Mr Hughes] as headteacher at this school for these pupils. Consider what he was required or supposed to set up by way of a workable system and in providing a suitable family and community atmosphere, and what was expected of him both during teaching hours and outside them, not only as a teacher but as a surrogate father for all the staff, all the pupils and all the functions of the school. Suppose that [Mr Hughes], as well could happen in this village, was able to choose to live in his own house just outside the gates. Could the [appellant council] say, “You simply cannot do the job to which we have appointed you, living outside the gates?” Could they say, “You must not do it, we can insist that you live on site?” In my view—and I have no hesitation in coming to it—such an attitude would be unreal, unjustified and wholly unreasonable. The [appellant council] might not like it. The [appellant council] might prefer otherwise. I simply cannot, nor do I find that for them so to insist could for one moment be based reasonably on the assertion that compliance with such a term was necessary—however desirable it might be in their view—to the proper performance by [Mr Hughes] of his post as headteacher at this school. I entirely indorse and accept his view that he could do all that was required of him without any loss, actual or perceived, to the staff, the pupils or the family or community he served by “sleeping over the road”. Indeed, in this case I believe living anywhere within sight of the school gates would do. I even think, on balance of probabilities, that the same answer would be the

Page 583 of [1993] 4 All ER 577

only proper one, applied to any property in the village; but the first example is sufficient, I believe, to dispose of the argument.’

The judge considered, very reasonably in my view, that he could get no help from looking at the way in which different teachers living in provided accommodation had been treated under s 145 of the Income and Corporation Taxes Act 1988 or its predecessors, such as s 33 of the Finance Act 1977. He also declined to draw any inference in favour of either side from Mr Hughes’s discussions with the clerk to the governors about the possibility of moving to a house outside the school grounds. The important point is the judge’s finding of fact, which is not challenged, that Mr Hughes ‘could do all that was required of him without any loss, actual or perceived, to the staff, the pupils or the family or community he served by “sleeping over the road”’. I turn now to the legal argument, which must perforce be based on acceptance of the judge’s unchallenged finding of fact.

Mr Reynold QC concedes that, for the appellant council to succeed, a term has to be implied in the contract of employment that the headmaster ‘is required to occupy the dwelling house Cedars for the better performance of his duties’, but he adduced no decided case referring to the doctrine of the implied term which in any way supported the proposition that on the facts found here any such term could possibly be implied in this case. In my opinion, the only way in which the term which the appellant council need to imply here could be implied into the contract would be to show that, unless he lived in the Cedars, Mr Hughes could not perform his duties as headmaster. Mr Reynold has insisted that to put the case in this way amounts to glossing or even distorting the words of para 2(1) of Sch 1, which merely speaks of ‘the better performance of his duties’. It is at this point that I must part company with counsel’s argument. In order that a term may be implied, there has to be a compelling reason for deeming that term to form part of the contract, and that compelling reason is missing in this case, unless it was essential that Mr Hughes should live in the house in order to do his job, but the facts found contradict that proposition. Without going into detail, I need only refer to Luxor (Eastbourne) Ltd v Cooper [1941] 1 All ER 33 at 44, 52, [1941] AC 108 at 125, 137 and (a case on which Mr Reynold relied) Liverpool City Council v Irwin [1976] 2 All ER 39 at 47, [1977] AC 239 at 258. I may perhaps illustrate my view by referring to what I said in the Court of Appeal in J M Reilly Ltd v Belfast Corp [1970] NI 68 at 83–84, in a passage which has no claim to originality of thought:

‘It is not enough for the court to conclude, (and I guard myself against doing so), that such a term would have made the contract more reasonable; terms will be implied not in order to make for the parties a contract which the court considers fair, but only to make effective the contract which the parties have made for themselves. The principle is clearly and authoritatively stated in Luxor v. Cooper ([1941] 1 All ER 33, [1941] AC 108), and even in Devonald v. Rosser ([1906] 2 KB 728, [1904–7] All ER Rep 988), which may at first sight appear to give a more liberal expression to the doctrine, one finds on analysis a loyal adherence to the rule of necessary implication in the passage ([1906] 2 KB 728 at 743, [1904–7] All ER Rep 988 at 994) where Farwell L.J. asks “What, then, are we to infer would be a reasonable bargain such as the parties, being businessmen, must have intended to make.” ’ (My original emphasis.)

Page 584 of [1993] 4 All ER 577

Once the principle stated above is accepted, it becomes pointless for the appellant council to argue that a requirement must be implied in a contract just because in fact for Mr Hughes to live in Cedars may have promoted (or even did promote) the better performance of his duties, and equally pointless to contrast the language of para 2(1) of Sch 1 to the 1985 Act, with that used in s 145(4)(a) of the Income and Corporation Taxes Act 1988.

The parallel drawn by Balcombe LJ (24 HLR 605 at 609) with the situation described by Lord Upjohn in Northern Ireland Comr of Valuation v Fermanagh Protestant Board of Education [1969] 3 All ER 352, [1969] 1 WLR 1708 at 1722 (also reported at [1970] NI 89, together with the judgments in the Court of Appeal in Northern Ireland) is well taken, in my opinion, and illustrates in another context the difference between what is essential and what is merely conducive to the better performance of the occupier’s duties: in the context of liability for or exemption from rates, the occupation is that of the employer if either the contract provides that the employee shall occupy or it is essential for the performance of his duties that the employee occupies the hereditament, but the occupation is that of the employee (and rates are payable by him) if the contract is silent, even though by living in the hereditament the employee can better perform his duties: cf Glasgow Corp v Johnstone [1965] 1 All ER 730, [1965] AC 609. I entirely agree with the comment of Balcombe LJ (24 HLR 605 at 609) on the passage which he quotes from the speech of Lord Upjohn Northern Ireland Comr of Valuation v Fermanagh Protestant Board of Education [1969] 3 All ER 352 at 359, [1969] 1 WLR 1708 at 1722:

‘It seems to me to be implicit in this passage that a term can only be implied that a employee shall occupy a particular house when such occupation is essential for the performance of his duties; otherwise there will be no scope for the implication of such a term upon the application of the principles referred to by [Lord Donaldson MR] in his judgment. When the occupation is required only for “the better performance” of his duties, then an express term is needed; there is no basis upon which a term can be implied.’

Mr Reynold has referred your Lordships to Chitty on Contract (26th edn, 1989) vol 1 (General Principles), ch 13 (Implied Terms) esp at paras 904–907, which, in my respectful opinion, confirm by reference to the decided cases everything which I have ventured to say on the subject:

‘The court will be prepared to imply a term if there arises from the language of the contract itself, and the circumstances under which it is entered into, an inference that the parties must have intended the stipulation in question [para 904] … A term will be implied if it is necessary, in the business sense, to give efficacy to the contract [para 905] … A term which has not been expressed may also be implied if it was so obviously a stipulation in the agreement that the parties must have intended it to form part of their contract [para 907, which is headed ‘Obvious inference from agreement’] … Further, since “the general presumption is that the parties have expressed every material term which they intended should govern their contract, whether oral or in writing,” the court will only imply a term if it is one which must necessarily have been intended by them … [para 907].’

Page 585 of [1993] 4 All ER 577

Among the authorities cited for the last proposition is Liverpool City Council v Irwin [1976] 2 All ER 39, [1977] AC 239, on which the appellant council relied in support of their argument that the parties shared an obvious but unexpressed intention that Mr Hughes should live at Cedars and that it was not open to the court to infer that he was not obliged to live there.

It is in my view impossible to contend that ‘it goes without saying’ that Mr Hughes was obliged to live at Cedars, when one recalls that it was not necessary for him to live there in order to do his job. And, in the absence of necessity, it cannot be tenably argued that there was a presumed intention of the parties that he must live there. Furthermore, there was no gap in completeness in the contract and, accordingly, there was no room to imply the term for which the appellant council contend.

I am satisfied that Mr Hughes was not by implication required to occupy Cedars. But, even if he had been, he was not required to occupy that house for the better performance of his duties. It is clear that the employer was providing a facility but not imposing an obligation. And, even if the employer had been imposing an obligation, the obligation could have been attributed simply to the expectation that the headmaster would live in the employer’s house as the designated way of enjoying the free lodging to which he was entitled. As my noble and learned friend Lord Bridge of Harwich put it during the argument, the appellant council were in reality contending that, when an employer provides a house in which the employee can in fact better perform his duties, that means that the employee is required to live there, a conclusion which does not follow from that premise.

Paragraph 2(3) of Sch 1 embodies a different test in the case of fire authority employees which is less favourable to them and thus illustrates the contrast between such employees and employees generally.

The parties were agreed, rightly in my view, that by virtue of s 79(3) of the 1985 Act licensees (or ‘service occupiers’) have the same security of tenure and the same rights to buy as tenants. Therefore nothing turns on the difference between the two kinds of occupancy. Any doubt is resolved by looking at the wording of the Housing Act 1980 and remembering that the 1985 Act is a consolidating statute.

The fact that, after the passing of the 1980 Act, a careful employer might have drawn up the contract differently cannot affect the situation (which must have been envisaged when the 1980 legislation was introduced, applying as it did to existing contracts as well as to new contracts) that many employed tenants and licensees would acquire the right to buy their homes.

I would, for the reasons I have given, dismiss this appeal with costs.

LORD BROWNE-WILKINSON. My Lords, for the reasons given by my noble and learned friend Lord Lowry, I, too, would dismiss this appeal.

LORD SLYNN OF HADLEY. My Lords, I, too, would dismiss this appeal for the reasons given by my noble and learned friend Lord Lowry.

Appeal dismissed.

Celia Fox  Barrister.

Marshall v Southampton and South West Hampshire Area Health Authority (No 2)

[1993] 4 All ER 586

(Case C-271/91)

Categories:        EUROPEAN COMMUNITY; Social policy, Other European Community: EMPLOYMENT; Discrimination        

Court:        COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES        

Lord(s):        JUDGES DUE (PRESIDENT), KAKOURIS, RODRÍGUEZ IGLESIAS, ZULEEG, MURRAY (PRESIDENTS OF CHAMBERS), MANCINI, SCHOCKWEILER, GRÉVISSE, DÍEZ DE VELASCO, KAPTEYN AND EDWARD        

Hearing Date(s):        ADVOCATE GENERAL VAN GERVEN        

8 DECEMBER 1992, 26 JANUARY, 2 AUGUST 1993

European Economic Community – Equality of treatment of men and women – Equal working conditions – Dismissal – Discriminatory dismissal – Compensation – Interest – Award by industrial tribunal of sum by way of compensation exceeding statutory limit – Award including amount representing interest – Whether national application of maximum limit on compensation infringing principle of equality of opportunity by adequate compensation for discriminatory dismissal – Council Directive (EEC) 76/207, art 6.

European Economic Community – Directives – Direct application in member states – Circumstances in which rights conferred by directives enforceable by individuals in courts of member states – Legal proceedings against a state – State – Whether individual may rely on directive in proceedings against state as employer to avoid application of national provision not complying with Community law – Council Directive (EEC) 76/207, arts 5, 6.

Following the judgment of the Court of Justice of the European Communities in answer to questions submitted to it by the Court of Appeal that the dismissal of the appellant by the respondent area health authority solely because she had attained the qualifying age for a state pension, which age was different under national legislation for men and for women, constituted discrimination on grounds of sex, contrary to Council Directive (EEC) 76/207, the Court of Appeal remitted the appellant’s complaint to the industrial tribunal to consider the question of remedy. Before the case was remitted the authority had paid the appellant the statutory maximum compensation of £6,250. The industrial tribunal assessed the appellant’s financial loss at £18,405, including £7,700 of interest, holding that s 35A of the Supreme Court Act 1981 entitled it to include a sum representing interest in its award. The health authority paid the appellant the balance of the capital sum awarded to her by the industrial tribunal but appealed against the award of interest. That appeal was upheld by the Employment Appeal Tribunal and on appeal by the Court of Appeal. The appellant appealed to the House of Lords. The House of Lords found that, although her appeal concerned the power of the industrial tribunal to award interest in cases of unlawful sex discrimination, the limit on compensation imposed by s 65(2) of the Sex Discrimination Act 1975 was also in issue and had been in issue before the Court of Appeal. If applicable to the compensation awarded to the appellant, s 65(2) would provide a complete answer to her claim for interest since the capital element of her loss exceeded the statutory limit. In those circumstances the House of Lords stayed the proceedings and referred to

Page 587 of [1993] 4 All ER 586

the Court of Justice of the European Communities for a preliminary ruling under art 177 of the EEC Treaty the questions (1) whether a member state was guilty of a failure to implement art 6 of Directive 76/207 by reason of the imposition by national legislation of an upper limit of £6,250 on the amount of compensation recoverable by a person who had been subjected to unlawful discrimination of a kind prohibited by that directive, (2) whether it was essential to the due implementation of art 6 that the compensation to be awarded should (a) be not less than the amount of the loss found to have been sustained by reason of the unlawful discrimination and (b) include an award of interest on the principal amount of the loss so found from the date of the unlawful discrimination to the date when the compensation was paid, and (3) if the national legislation of a member state had failed to implement art 6 of the directive in any of those respects, whether a person who had been subjected to unlawful discrimination was entitled as against an authority which was an emanation of the member state to rely on the provisions of art 6 as overriding the limits imposed by the national legislation on the amount of compensation recoverable.

Held – (1) Because the purpose of Council Directive (EEC) 76/207 was the implementation in member states of the principle of equal treatment for men and women as regards the various aspects of employment, including the conditions governing dismissal, the obligation on a member state imposed by art 6 to ensure real equality of opportunity through adequate reparation for the loss and damage sustained as a result of discriminatory dismissal implied that, where the measure adopted to restore equality was financial compensation, that compensation should be adequate, in that it should enable the loss and damage sustained as a result of the discriminatory dismissal to be made good in accordance with the application of national legislation. It followed therefore that national provisions which imposed an upper limit on the amount of compensation recoverable, or which excluded an essential component of compensation for the purpose of restoring real equality of treatment, such as an award of interest on the principal amount awarded from the date of the unlawful discrimination to the date when compensation was paid, were not consistent with the proper implementation of art 6 of the directive (see p 620 b  c e to j,  p 621 c to g and p 622 f to h, post).

(2) The combined provisions of arts 5 and 6 of the directive gave rise to rights which a person injured by discriminatory dismissal was able to rely on before national courts as against the state and authorities which were emanations of the state. The fact that member states were able to choose among different solutions in order to achieve the objective pursued by the directive could not result in an individual being prevented from relying on art 6 in a situation such as that in which the appellant found herself where national authorities had no degree of discretion in applying the chosen solution. Accordingly, art 6 could be relied on as against a state authority acting in its capacity as employer in order to avoid the application of a national provision which did not conform to art 6 (see p 620 d e and p 621 j to p 622 b d h, post).

Per curiam. The right of a state to choose among several possible means of achieving the objectives of a directive does not exclude the possibility for individuals to enforce before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone (see p 622 b c, post).

Page 588 of [1993] 4 All ER 586

Notes

For the powers of industrial tribunals, see 16 Halsbury’s Laws (4th edn reissue) para 489.

For the principle of equal treatment for men and women in matters of social security, see 52 Halsbury’s Laws (4th edn) para 21.14.

For the direct effect of Community law, see 51 Halsbury’s Laws (4th edn) paras 3.41–3.48.

For the Sex Discrimination Act 1975, see 6 Halsbury’s Statutes (4th edn) (1992 reissue) 702.

For the EEC Treaty, art 177, see 50 Halsbury’s Statutes (4th edn) 325.

Cases cited

Amministrazione delle Finanze dello Stato v SpA San Giorgio Case 199/82 [1983] ECR 3595.

Amsterdam Bulb BV v Produktschap voor Siergewassen Case 50/76 [1977] ECR 137.

Anklagemyndigheden v Hansen & Søn I/S Case C-326/88 [1990] ECR I-2911.

Becker v Finanzamt Münster-Innenstadt Case 8/81 [1982] ECR 53.

Birra Wührer SpA v EC Council and Commission Joined cases 256, 257, 265, 267/80, 5 and 51/81 and 282/82 [1984] ECR 3693.

Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941.

DGV, Deutsche Getreideverwertung und Rheinische Kraftfutterwerke GmbH v EC Council and Commission Joined cases 241, 242 and 245 to 250/78 [1979] ECR 3017.

Dumortier (P) Frères SA v EC Council Joined cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 [1979] ECR 3091.

Dumortier (P) Frères SA v EC Council Joined cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 [1982] ECR 1733.

EC Commission v Greece Case 68/88 [1989] ECR 2965.

Emmott v Minister for Social Welfare and A-G Case C-208/90 [1991] ECR I-4269.

Factortame Ltd v Secretary of State for Transport (No 2) Case C-213/89 [1991] 1 All ER 70, [1991] 1 AC 603, [1990] 3 WLR 818, [1990] ECR I-2466, CJEC and HL.

Foster v British Gas plc Case C-188/89 [1990] 3 All ER 897, [1991] 1 QB 405, [1991] 2 WLR 258, [1986] ECR 723, CJEC; subsequent proceedings [1991] 2 All ER 705, [1991] 2 AC 306, [1991] 2 WLR 1075, HL.

Francovich and Bonifaci v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357.

Freistaat Bayern v Eurim-Pharm GmbH Case C-347/89 [1991] ECR I-1747.

Harz v Deutsche Tradax GmbH Case 79/83 [1984] ECR 1921.

Interquell Stärke-Chemie GmbH & Co KG v EC Council and Commission Joined cases 261 and 262/78 [1979] ECR 3045.

Ireks-Arkady GmbH v EC Council and Commission Case 238/78 [1979] ECR 2955.

Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135, [1987] QB 129, [1986] 3 WLR 1038, [1986] ECR 1651, CJEC.

Katsikas v Konstantinidis Joined cases C-132/91, C-138/91 and C-139/91 [1993] IRLR 179, CJEC.

Kolpinghuis Nijmegen BV, Re criminal proceedings against Case 80/86 [1987] ECR 3969.

Leonardini v EC Commission Case 115/76 [1978] ECR 735.

Marleasing SA v La Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR I-4135.

Page 589 of [1993] 4 All ER 586

Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401, [1986] 2 WLR 780, [1986] ECR 723, CJEC.

Mulder v EC Council and Commission Joined cases C-104/89 and C-37/90 [1992] ECR I-3061.

Pauls Agriculture Ltd v EC Council and Commission Case 256/81 [1983] ECR 1707.

Samara v EC Commission Case 21/86 [1987] ECR 795.

Samara v EC Commission Case 266/83 [1985] ECR 189.

Sofrimport SARL v EC Commission Case C-152/88 [1990] ECR I-2477.

Union nationale des entraîneurs et Cadres techniques professionnels du football (Unectef) v Heylens Case 222/86 [1987] ECR 4097.

Union Sidérurgique du Nord et de l’Est de la France ‘Usinor’ v EC Commission Case 78/83R [1983] ECR 2183.

Union Sidérurgique du Nord et de l’Est de la France ‘Usinor’ v EC Commission Case 78/83R [1983] ECR 2183.

Vandevenne, Re criminal proceedings against Case C-7/90 [1991] ECR I-4371.

von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891; subsequent proceedings Judgment of 6 September 1984 Der Betrieb (1984) 2700, Arbeitsgericht Hamm.

Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe Joined cases C-143/88 and C-92/89 [1991] ECR I-415.

Reference

By order dated 14 October 1991 the House of Lords referred to the Court of Justice of the European Communities for a preliminary ruling under art 177 of the EEC Treaty three questions (set out at p 592, post) on the interpretation of art 6 of Council Directive (EEC) 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regarded access to employment, vocational training and promotion, and working conditions. The questions were raised in the course of an appeal by Miss M H Marshall to the House of Lords from the decision of the Court of Appeal (Dillon, Butler-Sloss and Staughton LJJ) ([1991] ICR 136) on 31 July 1990 dismissing her appeal from the decision of the Employment Appeal Tribunal (Wood J, Mr R J Lewis and Mr R H Phipps) ([1990] ICR 6) on 18 September 1989 upholding the appeal by the health authority against the decision of an industrial tribunal (M A Rich chairman) held at Southampton sent to parties on 21 June 1988 hearing the case of the appellant remitted to the industrial tribunal by the Court of Appeal following the judgment of the Court of Justice of the European Communities (Case 152/84 [1986] 2 All ER 584, [1986] QB 401) whereby the industrial tribunal included in its award of compensation for dismissal on the grounds of unlawful discrimination a sum representing interest. Miss Marshall, the health authority, the United Kingdom, the German government and the EC Commission submitted written observations to the court. Oral observations were presented to the court by Miss Marshall, the health authority, the United Kingdom, Ireland, represented by Feichin McDonagh, barrister, acting as agent, and the Commission. The language of the case was English. The facts are set out in the report for the hearing presented by the Judge Rapporteur.

Page 590 of [1993] 4 All ER 586

I—FACTS AND PROCEDURE

1. The national legislation

The Sex Discrimination Act 1975 prohibits any sex discrimination in several areas: employment, certain bodies such as trade unions and partnerships, education, the provision of goods, facilities, services and premises, and advertisements. Section 62(1) of the 1975 Act provides that a contravention of it will not incur as such any sanction, whether civil or criminal, except to the extent (if any) expressly provided in the Act.

For acts of sex discrimination in the area of employment, inter alia, the 1975 Act prescribes procedures for obtaining compensation for acts of sex discrimination which differ from those prescribed for other types of discrimination. Pursuant to s 63(1), any person who claims to have suffered sex discrimination in his employment may bring a claim in tort before an industrial tribunal, whereas in the other areas the county court has jurisdiction.

Pursuant to s 65(1)(b), where an industrial tribunal finds that complaint is well founded, it shall, if it considers it just and equitable to do so, make an order requiring the respondent to pay compensation to the complainant; however, by virtue of s 65(2), such compensation may not exceed a specified limit, which at the material time was £6,250, that figure having been increased several times subsequently. The same limit is applicable to the compensation which the industrial tribunal may award in other matters within its jurisdiction, namely complaints relating to unfair dismissal, offences under the Employment Protection Act 1978 and complaints relating to racial discrimination in employment prohibited by the Race Relations Act 1976. At the material time, the industrial tribunal was not empowered to award interest on the compensation awarded by it in relation to the various matters within its jurisdiction.

2. The Community legislation

Council Directive (EEC) 76/207 of 9 February 1976 is intended to give effect to the principle of equal treatment for men and women regarding access to employment, vocational training and promotion and working conditions, including conditions of dismissal. Articles 5 and 6 provide as follows:

‘Article 5

1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.

2. To this end, Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective

Page 591 of [1993] 4 All ER 586

agreements labour and management shall be requested to undertake the desired revision.

Article 6

Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.’

3. The facts of the case

Miss Marshall, the appellant in the main proceedings, worked from July 1966 to 31 March 1980 as a senior dietician for the Southampton and South West Area Health Authority (hereinafter referred to as ‘the health authority’). At the age of 62 she was dismissed on the ground that she had passed the normal retirement age for women, which was 60, at which age women were entitled to a state pension. In the course of the proceedings which she brought against her dismissal on grounds of discrimination, the Court of Appeal made a reference to the Court of Justice under art 177 of the EEC Treaty. In its judgment of 26 February 1986 in Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401 the court held that art 5(1) of the Directive 76/207 was to be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained or passed the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive.

Following the judgment of the Court of Justice, the Court of Appeal remitted the case to the industrial tribunal to consider the question of remedy. Even before the case was remitted, the health authority had paid Miss Marshall the statutory maximum compensation, namely £6,250. However, the industrial tribunal assessed Miss Marshall’s financial loss at £18,405, including a sum of £7,700 in respect of interest and awarded her compensation of £19,405 (which included £1,000 in respect of injury to feelings) (see [1988] 3 CMLR 389). The industrial tribunal held that s 35a of the Supreme Court Act 1981 entitled it to include in its award a sum representing interest. In its view, compensation was the only possible redress in Miss Marshall’s case and, moreover, the maximum limit imposed by the 1975 Act rendered the remedy of compensation inadequate and in breach of art 6 of the directive; it also held that Miss Marshall was entitled to rely on art 6 before the industrial tribunal.

In July 1988 the health authority then paid Miss Marshall the sum of £5,445, the balance of the capital sum awarded to her by the industrial tribunal, but appealed against the inclusion in the award of £7,710 in respect of interest. That appeal was upheld by the Employment Appeal Tribunal (see [1990] ICR 6). The Court of Appeal dismissed a further appeal by Miss Marshall (see [1991] ICR 136), who then appealed to the House of Lords.

The House of Lords found that although her appeal concerned the power of the industrial tribunal to award interest in cases of unlawful sex discrimination, the limit on compensation imposed by the 1975 Act, s 65(2) was also in issue and had been in issue before the Court of Appeal. If applicable to the compensation awarded to Miss Marshall, s 65(2) would provide a complete answer to her claim for interest since the capital element of her loss exceeded the statutory

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limit. In those circumstances, the House of Lords stayed the proceedings and by order of 14 October 1991, referred the following questions to the Court of Justice for a preliminary ruling:

‘1. Where the national legislation of a Member State provides for the payment of compensation as one remedy available by judicial process to a person who has been subjected to unlawful discrimination of a kind prohibited by Council Directive 76/207/EEC of 9th February 1976 ("the Directive"), is the Member State guilty of a failure to implement Article 6 of the Directive by reason of the imposition by the national legislation of an upper limit of £6,250 on the amount of compensation recoverable by such a person?

2. Where the national legislation provides for the payment of compensation as aforesaid, is it essential to the due implementation of Article 6 of the Directive that the compensation to be awarded—(a) should not be less than the amount of the loss found to have been sustained by reason of the unlawful discrimination, and (b) should include an award of interest on the principal amount of the loss so found from the date of the unlawful discrimination to the date when the compensation is paid?

3. If the national legislation of a Member State has failed to implement Article 6 of the Directive in any of the respects referred to in questions 1 and 2, is a person who has been subjected to unlawful discrimination as aforesaid entitled as against an authority which is an emanation of the Member State to rely on the provisions of Article 6 as overriding the limits imposed by the national legislation on the amount of compensation recoverable?’

4. Procedure before the court

The order from the House of Lords was received at the Court on 17 October 1991.

Pursuant to the second paragraph of art 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on behalf of Miss Marshall by Michael Beloff QC and Stephen Grosz, solicitor, of Bindman & Partners, for the health authority by Robert Webb QC and Andrew Lydiard, barrister (instructed by Messrs Le Brasseurs, solicitors), by the United Kingdom, represented by John Collins, Assistant Treasury Solicitor, acting as agent, and Derrick Wyatt, barrister, by the German government, represented by Ernst Röder, Ministerialrat in the Federal Ministry for Economic Affairs, and Claus-Dieter Quassowski, Oberregierungsrat in the same ministry, acting as agents, and by the Commission of the European Communities, represented by Nicholas Kahn, a member of its legal department, acting as agent.

Upon hearing the report of the Judge Rapporteur and the views of the Advocate General, the court decided to open the oral procedure without any preparatory inquiry.

II—SUMMARY OF THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT

1. Miss Marshall states, first, that neither the health authority nor the appellate courts challenged the basis of the compensation or the calculation of the interest awarded by the industrial tribunal, both being consistent with the principles established in the case law and thus correct but for the statutory limit on compensation and the absence of a power in the industrial tribunal to award interest. The sole grounds of complaint about the industrial tribunal’s award

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are first that it had no power to award interest at all and secondly that the amount of interest exceeded the statutory limit (whether taken by itself or cumulated with the principal award of compensation).

According to Miss Marshall, the preliminary questions essentially raise three issues: first, the issue of the right to an effective remedy against the state or an emanation thereof in the event of discrimination prohibited by the directive under arts 5(1) and 6 thereof; secondly, that of the adequacy of the compensation in relation to the injury suffered; and, thirdly, what should be the response of the national court to national legislation which imposes limits on compensation.

The principle of effective judicial protection requires the member states, by virtue of the obligations imposed on them by art 5 of the EEC Treaty, to adopt all measures necessary to ensure that rights derived from the Community legal order are effective, and embraces not only procedural guarantees but also substantive guarantees such as effective remedies for wrongs (von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891, Factortame Ltd v Secretary of State for Transport (No 2) Case C-213/89 [1991] 1 All ER 70, [1991] 1 AC 603 and Francovich v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 in particular are cited by the applicant in that connection).

As regards the adequacy of the compensation, Miss Marshall considers that sanctions for breaches of Community rights must be effective, proportionate and dissuasive (the effectiveness principle); in particular, they must punish breaches under conditions, both procedural and substantive, which are analogous to those applicable to breaches of national law of similar nature and importance (the comparability principle; the applicant refers to von Amministrazione delle Finanze dello Stato v SpA San Giorgio Case 199/82 [1983] ECR 3595 in that connection). In assessing the effectiveness of the sanction, regard must be had to the objectives both of Directive 76/207, namely the elimination of discrimination, and of an award of compensation in tort, which is intended to place the plaintiff, so far as possible, in the position in which he would have been had the tortious act not been committed (the principle of restitutio in integrum). Specifically with regard to the directive, the Court held in von Colson that a sanction must in every case, in order to be effective and dissuasive, be adequate in relation to the damage sustained. In the present case, any amount lower than the full amount of compensation calculated and awarded by the industrial tribunal would fail to place Miss Marshall in the position in which she would have been if she had not been the victim of unlawful discrimination, would fail to achieve the objective of equality of treatment and would fail to provide an effective deterrent to employers in the position of the health authority, who might calculate that it would be cheaper to dismiss a woman in breach of the directive than to continue to employ her. That applies also to interest, which the industrial tribunal was not empowered to grant, but without which any compensation would be inadequate having regard to the damage sustained and the long delay before the compensation awarded was actually paid. Moreover, the obligation to pay interest on the amount of compensation is a general principle common to the legal systems of the member states.

As regards the principle of comparability, Miss Marshall contends that, by virtue of the statutory limit, compensation for unlawful sex discrimination in employment is not as favourable as damages or compensation in other, comparable fields involving fundamental rights. Claims in domestic law for

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unlawful discrimination in areas other than employment, for which the county courts have jurisdiction, are not subject to the statutory limits; the same applies to claims for dismissal other than by reason of discrimination alone, for which the industrial tribunals have jurisdiction. Furthermore, the principle in question is also breached with regard to interest since, by contrast with the present case, it is possible to allow interest on sums awarded by way of compensation in other actions for discrimination brought in the county courts and other actions in tort brought in the High Court.

Finally, relying on the case law of the Court of Justice which has established the principle that a national court is obliged to set aside a rule of national law which would prevent it from taking such measures as are necessary to ensure the full effectiveness of rights deriving from Community law, Miss Marshall submits that the industrial tribunal is obliged to award her the compensation which it assesses as adequate to remedy the breach of her Community law rights, setting aside where necessary the provisions of domestic law which would otherwise prevent it doing so. In the alternative, having regard to the judgment in Marleasing SA v La Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR I-4135, the industrial tribunal is obliged to construe the relevant provisions of domestic law as if the power to award interest were conferred on it and the limit as to compensation was absent.

2. The health authority contends that the requirements of art 6 of the directive do not preclude the imposition by national legislation of some monetary limit on the amount of compensation recoverable in respect of unlawful discrimination, provided that the compensation available is sufficient to provide real and effective judicial protection and to have a real deterrent effect on employers. It is clear from the judgment in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 that the requirement that compensation should be adequate was regarded as a consequence of the requirement that the sanction chosen by the member state should be such as to guarantee real and effective judicial protection and have a real deterrent effect. It cannot be said that the remedies available under the 1975 Act are not a form of real and effective judicial protection and it cannot be said that the compensation available is limited to a purely nominal amount, as it was in the von Colson case.

With respect to comparability, the health authority contends that Miss Marshall’s approach, in comparing complaints of unlawful sex discrimination in employment with certain claims in other areas, is incorrect. According to the health authority, other types of employment-related complaints are more truly comparable to a complaint of unlawful discrimination contrary to the directive, namely those relating to race discrimination in employment and unfair dismissal from employment. Complaints in each of those categories are dealt with in the same forum, the industrial tribunal, and the remedies available under the 1975 Act are analogous to those provided for in a case such as the present one.

The health authority emphasises that Directive 76/207 makes no provision for the measure or quantum of compensation to be awarded in cases of unlawful discrimination and likewise sets no standard by which to measure the adequacy of the money value of the compensation against the extent of pecuniary and non-pecuniary loss sustained. The only workable standard is the general principle that the judicial protection provided must be effective and that the sanction must have a dissuasive effect. Judged by those standards the

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remedies provided by the 1975 Act, with a ceiling which is frequently updated, are in conformity with the directive.

Turning to the principle of consistent interpretation (judgment in Marleasing SA v La Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR I-4135) whereby the national courts are required to interpret national law, to the fullest possible extent, in the light of the relevant Community terms and provisions, the health authority contends that, if it were prohibited to set the limit at issue, that principle would be of no assistance in the present case. It is merely a principle of interpretation which obliges the national courts to seek consistency only to the extent to which their national legislation leaves them a margin of discretion. And the terms of s 65(2) of the 1975 Act, which set that limit, leave no margin such as to allow an interpretation more favourable to the requirements of Community law.

Finally, the health authority refers to the judgment in von Colson and to the judgment in Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135, [1987] QB 129 in support of its view that art 6 of the Directive 76/207 has no direct effect, in that that article does not contain, as far as sanctions for any discrimination are concerned, any unconditional and sufficiently precise obligation which may be relied on by an individual. The scope of the von Colson judgment is not limited to upholding the principle that art 6 imposes on the member states no obligation to apply a specific form of sanction but explicitly extends to cover and to show the lack of direct effect in respect of any attempt to rely on the directive to recover compensation otherwise than as provided for by national law. Any other approach would deny to the member states the discretion conferred on them for implementation of the directive.

3. According to the United Kingdom, the sole issue outstanding in the national proceedings after payment of the other sums is the entitlement or not of Miss Marshall to a sum of £7,710 by way of interest. As appears from the reference, either English law gives no power to an industrial tribunal to award interest for periods prior to the date of judgment or at any rate the law is ambiguous and the question unresolved. Since the task of the Court of Justice is to deliver opinions on real, not hypothetical, questions, the first and second questions should be reformulated so as to ask directly whether art 6 requires the payment of interest on earnings and pension loss in respect of discriminatory retirement and whether the application of a maximum limit on compensation is compatible with art 6 where, as a result of payment to the person aggrieved of all other sums awarded by a tribunal of first instance, its sole effect in the proceedings would be to bar such a payment of interest. In that regard, the United Kingdom refers to the case law of the Court of Justice on the reimbursement of charges levied by national authorities in breach of Community law. According to that case law, although Community law may require such reimbursement it does not require the payment of interest, that being a matter of national law. The United Kingdom considers that the same principle applies to a claim for interest on compensation for earnings or pension loss. The case law of the Court of Justice on the non-contractual liability of the Community supports that conclusion. It follows that where the national legislation of a member state provides for the payment of compensation to a victim of discrimination within the meaning of the directive, art 6 of the directive does not require that the compensation should include an award of interest in respect of relevant earnings and pension loss for any period prior to

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the judgment establishing the obligation to make good the damage. It is not therefore contrary to the said art 6 to apply an upper limit on compensation where, following the payment to an aggrieved party of all other sums awarded by a tribunal of first instance, that limit has the sole effect in national proceedings of excluding payment of such interest.

The United Kingdom considers that an answer to questions 1 and 2(b) in those terms would make further consideration of questions 1, 2(a) and 3 unnecessary. If however the Court of Justice should consider it necessary to do so, the United Kingdom submits that, according to the case law of the court, where directly applicable Community rights are sought to be enforced in the national courts, it is for the national legal order to specify the competent national courts and applicable procedural rules. The latter rules must, however, not be less favourable than those governing the same or similar rights of action under national law and must not make it impossible or virtually impossible in practice to exercise rights which the national courts have a duty to protect under Community law (judgment in Amministrazione delle Finanze dello Stato v SpA San Giorgio Case 199/82 [1983] ECR 3595). It follows that the present division of responsibilities between the Community legislature and the legal systems of the member states leaves an element of discretion to the member states when it comes to establishing the level of damages available for the infringement of rights specified by an EEC directive. Community law defines the rights which it considers worthy of protection, whilst the national legal systems ensure the protection of those rights within the framework of the procedural law and remedies which secure protection of similar rights of purely national character.

Relying on the foregoing considerations, the United Kingdom submits that art 6 of the directive does not lay down a uniform law of remedies or a uniform system of compensation but allows the member states a margin of discretion regarding the range and nature of the judicial remedies to be made available in order to sanction breaches of arts 3, 4 and 5 of the directive. That margin must nevertheless be in conformity with the criteria laid down by the court in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891, namely that any sanction imposed must guarantee real and effective judicial protection, it must have a real deterrent effect on the employer and the compensation must in any event be adequate in relation to the damage sustained.

The United Kingdom concludes from the foregoing that an upper limit is compatible with art 6 of the directive if it provides a remedy which is no less favourable than is available for breach of the same or similar national rights and if it does not make the exercise of the rights impossible or virtually impossible in practice. An upper limit such as that at issue in these proceedings allows adequate compensation for the damage sustained through discriminatory retirement provided that it applies in the same way to comparable national rights and, with respect to discriminatory retirement of the kind at issue in this case, it allows substantial and not merely nominal compensation in respect of loss of opportunity of continued employment.

Finally, the United Kingdom states that the third preliminary question raises the problem of the direct effect of art 6 of the directive and, therefore, the preliminary issue of whether national provisions which impose a limit on compensation may be interpreted in such a way as to allow that limit to be modified if its application is incompatible with art 6 of the directive. The United Kingdom concedes that an interpretation of national law must be adopted

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which is compatible with the provisions of the directive concerned, whether the national law was adopted before or after the directive. However, it is not possible for the United Kingdom courts to interpret a specific statutory limit in such a way as to deprive it of application, even if it is incompatible with the provisions of a directive. In any such case, it is necessary to consider whether the relevant provision of the directive has direct effect. The United Kingdom states that the court has already held (in von Colson) that art 6 of the directive does not have direct effect regarding the specific sanction to be applied by a national court. It has direct effect only where the legal protection for which it provides is totally excluded. It follows that a person may not rely on art 6 of the directive against an emanation of a member state to override limits imposed by national legislation on the amount of compensation recoverable, where the limit is no less favourable than that imposed on comparable claims of a purely national character and where the limit does not amount to a total exclusion of judicial protection.

4. The German government states that the directive contains no express provision regarding the nature of the penalties to be laid down for breaches by employers of the principle of equal treatment but leaves the member states free to choose between the different solutions available for achieving its objective (judgments in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 and in Harz v Deutsche Tradax GmbH Case 79/83 [1984] ECR 1921). However, from the objectives of the directive, in conjunction with the right to bring judicial proceedings which art 6 confers on the victims of discrimination, the Court of Justice has inferred that the sanctions laid down for breaches of the prohibition of discrimination must be such as to guarantee real and effective judicial protection and that it must have a real deterrent effect on the employer (judgments in von Colson and Harz and in Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus [1990] ECR I-3941).

The force of the deterrent effect of a sanction may depend on the circumstances of the individual case, and in particular on the employer’s financial means; however, the legislature cannot take account of all circumstances of every conceivable case. Accordingly, a generalised approach must be adopted in determining the amount of the sanction, so that the compensation awarded will deter an employer with normal awareness of the costs of doing so from discriminating on the basis of sex. Compensation like that awarded in the present case would certainly have a sufficient dissuasive effect to achieve the objectives of the directive.

As regards the other requirement deduced from the directive by the Court of Justice, namely that the amount of compensation should be adequate in relation to the damage sustained by the victim of discrimination, the German government considers that it does not exclude a limitation on compensation to an amount which, in particular cases, may be less than the damage sustained. The words used by the court, namely compensation which is ‘adequate in relation to the damage sustained’, show that the amount of compensation recoverable must be reasonable in relation to the amount of damage sustained but they do not require that the two amounts must be exactly the same in every case. If the Court of Justice had considered that full indemnification for the damage suffered was necessary in order to implement the directive effectively, it would have said so clearly.

The question whether entitlement to compensation must give rise to the payment of interest—and if so in respect of what period of time—cannot, in the German government’s view, be resolved by reference to the directive. If the

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compensation as a whole has an actual deterrent effect on the employer and is adequate in relation to the damage sustained, the breakdown of the total amount of such compensation—for example whether or not interest is included—is a matter for the national rules.

The answers proposed by the German government for the first two questions make it unnecessary to answer the third question.

5. The Commission submits that, although the preliminary questions refer to art 6 of the directive, the obligation on a member state to provide remedies for the infringement of rights derived from Community law does not depend on the inclusion in Community legislation of an express obligation such as art 6 but is an obligation inherent in the system of Community law. The Commission considers that the obligation to provide effective remedies for the infringement of rights derived from Community law is no more than the concrete application of the general requirement of art 189 of the EEC Treaty that a directive is to be binding as to the result to be achieved and of the obligation set out in art 5 of the Treaty that member states are to take ‘all appropriate measures’ to ensure fulfilment of their Treaty obligations. In that connection, the Commission refers to the judgments in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 and Harz v Deutsche Tradax GmbH Case 79/83 [1984] ECR 1921, from which it deduces that the member states remain free to determine the nature of the redress to be provided. If a member state opts for a sanction in the form of compensation, it must in any event be adequate in relation to the damage sustained and have a real deterrent effect.

According to the Commission, in matters of civil liability, what is at issue is the general problem of the ordinary measure of damages, which may be defined as that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation. Such a measure of damages does not assure the recovery of all the losses which might possibly be said to arise from the commission of a tort, since victims cannot be compensated for losses which could not reasonably be foreseen or for a loss that is not certain. The fact nevertheless remains that, whilst it may be conceded that situations may differ considerably, in circumstances such as those of the present case a limitation on the quantum of damages that may be awarded when applying the normal measure of damages in tort necessarily results in the damages received being less than adequate in relation to an objective evaluation. Proof of this lies in the fact that the industrial tribunal, in taking account of Miss Marshall’s age at the time of her dismissal (62) and calculating her loss of earnings until the age of 65, arrived—there being no dispute in that regard—at an amount which considerably exceeded the statutory limit.

The Commission goes on to say that, even though it is not entirely unforeseen by Community legislation (see for example certain aspects of Council Directive (EEC) 85/373 of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products and, in the field of employment, Council Directive (EEC) 80/987 of 20 October 1980 on the approximation of the laws of the member states relating to the protection of employees in the event of the insolvency of their employer), the possibility of member states introducing limitations on liability in the implementation of Community law is extremely rare and those instances relate to situations which are not comparable to those covered by the directive in question. This shows that there

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is nothing in Community law which detracts from the application to the present case of the general proposition that principles of Community law and the provisions of the directive require that, if a member state chooses to implement the directive by providing for compensation to be paid to the victims of discrimination, the compensation available must not be limited in such a way as to diminish the adequacy and effectiveness of compensation as a remedy for breach of the directive.

With regard to question 2(b), the Commission considers that the question whether it is essential to due implementation of the directive that interest be awarded from the date of the discrimination until the date when compensation is paid must, like the issue of the existence of a limit on the quantum of damages, be determined by reference to its implications for the adequacy and effectiveness of the remedy. The Commission observes that in the present case, as a result of the duration of the various steps in the proceedings, over a decade has elapsed already since the appellant’s cause of action arose. As regards the sums of money which Miss Marshall might have had at her disposal if the unlawful discrimination had never taken place, the decline of purchasing power of money in the intervening period will serve to illustrate how the adequacy of compensation is diminished if payment is delayed. In such circumstances, the Commission considers that the payment of interest is an essential element in ensuring that the damages awarded fulfil their purpose by restoring the plaintiff to his original position. In the absence of express national provisions making it possible to award interest in cases such as this one, the national courts should be guided by comparable situations for which such provisions exist. Since in the United Kingdom the competent courts are empowered to, and do, award interest on compensation in respect of torts causing personal injury, the same should apply in the case of discrimination prohibited by the directive which gives rise to pecuniary loss—torts of that kind and discrimination should be regarded as entirely comparable. In the submission of the Commission, therefore, the correct implementation of the directive requires that the same discretion to award interest for pecuniary losses be available as it is in personal injury claims under national law.

As far as the third preliminary question is concerned, the Commission, referring to its view that the obligation to provide an effective judicial remedy does not flow only from art 6 of the directive but is inherent in Community law, considers that if art 5 of the directive can be relied on directly against the state to establish the substantive right conferred by that provision, that directly effective right, in conjunction with the general obligation to provide remedies, gives rise to the right to an adequate and effective remedy against the state in the event of the breach of that right by the state.

However, that approach, which depends on the defendant being the state or an emanation of the state and is sufficient to dispose of the present case, largely leaves open the same questions as regards the position of a person discriminated against by a private employer. Therein lies the interest in considering art 6 in isolation, for the purpose of verifying, in the case of its being applied horizontally, whether, first, it confers a directly effective right to an effective and adequate remedy and, secondly, whether it can be used as an aid to the interpretation of national law.

As to the question of direct effect, the Commission points out that in von Colson the court, although stating that art 6 conferred a right to an effective judicial remedy, did not hold that that provision had direct effect. It follows

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that since art 6 does not specify the nature of the sanction sought, it does not provide a directly effective right to override the limits of national law.

As regards the question whether art 6 imposes an obligation on the national courts to interpret the provisions of national law in conformity with the objectives of the directive, the Commission observes that, whilst in von Colson the court recognised such an obligation in general terms, the fact nevertheless remains that in that same judgment it made it clear that that obligation is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity. An interpretation of national law based on art 6 to override the very clear limits of national legislation would offend against the above principles. Furthermore, in the light of the court’s recognition of a cause of action against the state for non-transposition of provisions of a directive not having direct effect in Francovich v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 such an interpretative approach is rendered unnecessary.

In conclusion, the Commission submits that the preliminary questions should be answered as follows:

‘1. General principles of Community law require that, where a member state chooses to implement Directive 76/207 by providing for the payment of compensation to individuals where their rights under the directive are infringed by their employer, the amount of compensation to be awarded should be adequate in relation to the loss sustained by reason of the unlawful discrimination and should not be significantly limited in its measure, quantum or otherwise in such a way as to impair the effectiveness of the award of compensation as a remedy for the loss sustained.

2. If the legislation implementing Directive 76/207 has failed to implement fully the above requirement, a person who has suffered loss as a result of a breach of a directly effective provision of the directive by an employer which is an emanation of the state has a right to be compensated on the terms set out above by the state.’

26 January 1993. The Advocate General (W Van Gerven) delivered the following opiniona.

Mr President, Members of the Court,

1. The case before the court is an application from the House of Lords for a preliminary ruling on art 6 of Council Directive (EEC) 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (hereinafter referred to as ‘the directive’). The questions arose in a dispute between Miss Marshall (the appellant in the main proceedings) and the South West Hampshire Area Health Authority (the respondent in the main proceedings, hereinafter referred to as ‘the authority’).

Article 6 of the directive reads as follows:

‘Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.’

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Background to the case

2. By judgment of 26 February 1986 the court answered a preliminary question from the Court of Appeal of England and Wales on art 5(1) of the directive. That article prohibits all discrimination on grounds of sex with regard to access to employment and working conditions. The court held that an individual may rely upon art 5(1) against a state authority acting in its capacity as employer, in order to avoid the application of any national provision which does not conform to that article (see Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401). Miss Marshall, who was the victim of discrimination contrary to art 5(1), was the appellant in the main proceedings in that case.

Following the judgment of 26 February 1986, the Court of Appeal remitted the case to the industrial tribunal, the competent body for matters concerning discrimination in employment, in order to determine the compensation to be awarded to Miss Marshall. Even before the case had been remitted to the industrial tribunal, the authority had paid her compensation of £6,250. Under s 65(2) of the Sex Discrimination Act 1975, that was the maximum compensation payable by an industrial tribunal.

However, the industrial tribunal awarded Miss Marshall compensation of £19,405, including £7,710 in respect of interest and £1,000 in respect of injury to feelings (see [1988] 3 CMLR 389. The statement of facts submitted by the House of Lords refers to a sum of £7,700 in respect of interest. However, I infer from para 11 of the statement, which mentions ‘the sum of £5,445·00, being the balance of the capital sum awarded to Miss Marshall by the industrial tribunal’, that this must be a typing error. In any event, in their written observations to the court both the Commission and the United Kingdom refer to an amount of £7,710). Following that award, the authority paid Miss Marshall a further £5,445, with the result that the total compensation paid to her amounted to £11,695. However, the authority appealed against the award of £7,710 in respect of interest and its appeal was upheld by the Employment Appeal Tribunal (see [1990] ICR 6).

Miss Marshall appealed to the Court of Appeal. Here, too, she was unsuccessful, it being held that she was not entitled to rely on art 6 as having direct effect to set aside the upper limit laid down by s 65(2) of the 1975 Act (see [1991] ICR 136).

3. Finally, Miss Marshall appealed to the House of Lords, which referred three questions to the Court of Justice for a preliminary ruling. The questions are reproduced in extenso in the report for the hearing, which also contains a further explanation of the facts of the case, to which I would refer.

Although the appeal before the House of Lords relates exclusively to the power of the industrial tribunal to award interest, it appears from the statement of facts appended to the order for reference that, in the view of the House of Lords, the limit on compensation imposed by s 65(2) of the 1975 Act is also at issue: ‘If applicable to the compensation awarded to Miss Marshall, section 65(2) would provide a complete answer to her claim for interest since the capital element of her loss exceeded the statutory limit’ (para 12). In other words, the award of interest was also precluded in this case by the existence of that limit and not simply because the industrial tribunal was not empowered to award interest (moreover, English law is not unambiguous as to whether such a power is lacking: see para 8(5) of the statement of facts). In view of that statement of reasons, I would propose that the court should not take up the suggestion made

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by the United Kingdom and Ireland to the effect that it should rule only on the validity of any prohibition of the award of interest by way of compensation, but that it should also consider the validity of a statutory limit on compensation.

May individuals rely on art 6 of the directive before national courts?

4. I shall consider the national court’s third question first. By this question, the House of Lords seeks to establish whether a victim of discrimination prohibited by the directive is entitled to rely in the national courts against a public body of his or her member state on art 6 of the directive in order to set aside the limits imposed by the national legislation on the amount of compensation recoverable. (The court decided as early as 1982 that the provisions of a directive may, under certain conditions, be relied upon in the national courts directly by individuals against public authorities: see Becker v Finanzamt Münster-Innenstadt Case 8/81 [1982] ECR 53 at 71 (para 25).)

5. (Vertical) direct effect of art 6 in so far as it provides for a judicial remedy  The court has already considered the question of the direct effect of art 6 of the directive in its judgment in Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] 3 All ER 135, [1987] QB 129 (see also Union nationale des entraîneurs et Cadres techniques professionnels du football (Unectef) v Heylens Case 222/86 [1987] ECR 4097 at 4117 (para 14)). The court identified two elements in art 6: the obligation for member states to provide for an effective judicial remedy and the obligation to impose sanctions in respect of any prohibited discrimination. As far as the first element is concerned, the court held as follows ([1986] 3 All ER 135 at 156, 161, [1987] QB 129 at 147–148, 154–155):

‘18. The requirement of judicial control stipulated by [art 6 of the directive] reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in arts 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) …

19. By virtue of art 6 of Directive 76/207, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment for men and women laid down in the directive. It is for the member states to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the directive provides …

58 … in so far as it follows from that article, construed in the light of a general principle which it expresses, that all persons who consider themselves wronged by sex discrimination must have an effective judicial remedy, that provision is sufficiently precise and unconditional to be capable of being relied upon as against a member state which has not ensured that it is fully implemented in its internal legal order.’

6. Does art 6 have no (vertical) direct effect in so far as it introduces a requirement to impose sanctions, but only embodies an obligation to interpret national law in conformity with the directive? In contrast, in so far as the obligation to impose sanctions in respect of discrimination contrary to the directive is concerned, the court held in Johnston [1986] 3 All ER 135 at 161, [1987] QB 129 at 154–155 (para 58) that the directive did not contain in that regard any unconditional and

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sufficiently precise obligation which, in the absence of implementing measures adopted in good time, might be relied upon by individuals in order to obtain specific compensation under the directive, where that is not provided for or permitted under national law. In so doing, the court confirmed two earlier judgments in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 at 1909 (para 27) and Harz v Deutsche Tradax GmbH Case 79/83 [1984] ECR 1921 at 1942 (para 27), in which the same conclusion was reached (see para 10, post).

On the basis of that case law, the answer to the national court’s third question should be that the victim of discrimination prohibited by the directive cannot rely, inter alia against a (public body of a) member state, on art 6 of the directive in order to have the limits imposed by the national legislation on the amount of compensation recoverable set aside by the national courts. It will become clear from what I shall have to say later (see para 11, post) that I have come to a different conclusion.

7. The above does not signify that individuals affected by the limits in question may not derive any legal remedies at all from the court’s case law as it stands. The court has significantly extended the judicial protection of individuals in other ways, in particular by imposing on national courts an obligation to interpret their national law in accordance with Community law. In order to define that obligation, I should first call to mind the court’s case law which specifies the rules of Community law relating to sanctions in respect of Community provisions.

The starting point for this case law is that member states must secure the full effectiveness of Community law and, more specifically, of directives. This implies that they must impose sanctions under civil, administrative or criminal law, depending on the case, in respect of prohibitions laid down by directives. The court bases that obligation on the obligation to guarantee the application and effectiveness of Community law imposed on member states by art 5 of the EEC Treaty:

‘… where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law.’ (See EC Commission v Greece Case 68/88 [1989] ECR 2965 at 2984 (para 23), Anklagemyndigheden v Hansen & Søn I/S Case C-326/88 [1990] ECR I-2911 at 2935 (para 17), Re criminal proceedings against Vandevenne [1991] ECR I-4371 (para 11). Amsterdam Bulb BV v Produktschap voor Siergewassen Case 50/76 [1977] ECR 137 at 150 (paras 32–33) which already contains the beginnings of this case law.)

The court has also stated with regard to the directive at issue in these proceedings that:

‘It is impossible to establish real equality of opportunity without an appropriate system of sanctions. That follows not only from the actual purpose of the directive but more specifically from Article 6 thereof which, by granting applicants for a post who have been discriminated against recourse to the courts, acknowledges that those candidates have rights of which they may avail themselves before the courts.’ (See von Colson [1984]

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ECR 1891 at 1908 (para 22) and Harz [1984] ECR 1921 at 1941 (para 22); see also [1984] ECR 1891 at 1906 (para 15), [1984] ECR 1921 at 1939 (para 15).)

8. However, the third paragraph of art 189 of the EEC Treaty leaves the member states free to choose the forms and methods of implementing directives. As regards the obligation to impose sanctions contained in art 6 of the directive, the court has stated as follows:

‘Such measures may include, for example, provisions requiring the employer to offer a post to the candidate discriminated against or giving the candidate adequate financial compensation, backed up where necessary by a system of fines. However the directive does not prescribe a specific sanction; it leaves Member States free to choose between the different solutions suitable for achieving its objective.’ (See von Colson [1984] ECR 1891 at 1907 (para 18), Harz [1984] ECR 1921 at 1940 (para 18).)

This freedom on the part of the member states is not, however, unlimited. As is pointed out in the passage quoted in the preceding section, it follows from the purpose of art 6 of the directive that the member states must provide for ‘an appropriate system of sanctions’. This entails, as the court goes on to say in the judgments in von Colson [1984] ECR 1891 at 1908 and Harz [1984] ECR 1921 at 1941, that—

‘23 … that sanction be such as to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on the employer. It follows that where a Member State chooses to penalize the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained.

24. In consequence it appears that national provisions limiting the right to compensation of persons who have been discriminated against as regards access to employment to a purely nominal amount, such as, for example, the reimbursement of expenses incurred in submitting their application, would not satisfy the requirements of an effective transposition of the directive.’

With regard to criminal penalties, the court explained on a later occasion that, while the member states are free to choose the penalties to be imposed, they must be effective, proportionate and dissuasive (see EC Commission v Greece [1989] ECR 2965 at 1985 (para 24), Hansen [1990] ECR I-2911 at 2935 (para 17) and Vandevenne [1991] ECR I-4371 (para 11).

9. The court also stated that infringements of Community law should be penalised, not only in a ‘sufficiently enforceable’ manner but also in a ‘comparable’ manner, that is say under procedural and substantive conditions which are analogous to those applicable to corresponding infringements of national law:

‘Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.’ (See EC Commission v Greece [1989] ECR 2965 at 2984 (paras 24–25), Hansen [1990] ECR I-2911 at 2935 (para 17) and Vandevenne [1991] ECR I-4371 (para 11). Although those judgments are concerned with criminal penalties, the criterion of comparability applies undiminished to civil sanctions: see

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Francovich and Bonifaci v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 (para 43).)

In addition, not only the sanctions themselves have to fulfil the above-mentioned criteria of ‘sufficient enforceability’ and ‘comparability’, but this also applies to the procedural rules which result in the imposition of sanctions. They may not be ‘less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible the exercise of rights conferred by Community law’ (see Emmott v Minister for Social Welfare and A-G Case C-208/90 [1991] ECR I-4269 at 4298 (para 16)).

10. Thus, even if individuals cannot rely, as regards rules on sanctions, directly on art 6 of the directive (see para 6, ante, but see para 11, post), it is for the national courts, where a provision of a directive without direct effect is not implemented on time or even if it is incompletely or incorrectly implemented, to interpret the sanctions contained in their national legislation in accordance with the rules of Community law ensuing from art 6 of the directive as described above.

That obligation of the national court, ‘in so far as it is given discretion to do so under national law’, (see von Colson [1984] ECR 1891 at 1909 (para 28) and Harz [1984] ECR 1921 at 1943 (para 28)), to interpret national provisions—dating from after and even before the directive (see Marleasing SA v La Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR I-4135)—in so far as possible in conformity even with a directive without direct effect (albeit having regard to the general principles of law, such as the principles of legal certainty and non-retroactivity: see Re criminal proceedings against Kolpinghuis Nijmegen BV Case 80/86 [1987] ECR 3969 at 3986 (para 13)) is not completely watertight. It does not oblige the national court to interpret national law, such as, for example, a specific rule on sanctions, contra legem (see Y Galmot and J C Bonichot ‘La Cour de Justice des Communautés européennes et la transposition des directives en droit national’ Rev fr droit adm 1988, 1, esp at p 20 ff). The national court should, however, interpret ambiguous provisions, such as those mentioned in this case which debar the industrial tribunal from awarding interest (see the Statement of Facts, para 8(3), cited in para 3 above), in accordance with Community law. Moreover, it may be obliged, if permitted by the national interpretation rules, to replace specific national rules which conflict with the directive by general national rules which do not (as in the case of the German court after von Colson, Arbeitsgericht Hamm, judgment of 6 September 1984, Der Betrieb (1984) 2700).

11. The requirement to impose sanctions laid down by art 6 of the directive none the less has direct effect The national court will therefore not always be capable of being induced to achieve the result laid down by Community law by means of interpretation. If therefore the requirement for sanctions prescribed by art 6 of the directive is to be sufficiently effective, it must be construed, just like the requirement for judicial protection which that provision entails (see para 5, ante), as a provision having direct effect at least vis-à-vis the member states. I consider that there is every reason for taking this view.

As long ago as the judgments in von Colson and Harz the court held that it follows from the purpose of the directive and from art 6 thereof that the equality of opportunity laid down by the directive cannot be established without an appropriate system of sanctions (see para 7, ante). It can further be inferred from the court’s case law (see paras 8 and 9, ante) what criteria have to be taken into account in achieving such an appropriate system of sanctions. The court derives those sufficiently precise criteria from principles of Community law. It

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appears to me that, as a result, it is clear at the same time that the requirement to impose sanctions which is entailed by the directive has direct effect vis-à-vis member states and their public bodies by virtue of those principles of Community law.

The judgment in Johnston v Chief Constable of the Royal Ulster Constabulary [1986] 3 All ER 135 at 161, [1987] QB 129 at 154 (para 58) holds, in connection with the obligation stipulated by art 6 to provide for effective judicial protection, that art 6 has direct effect, on the ground that ‘that article, construed in the light of a general principle which it expresses’, is sufficiently precise and unconditional to be capable of being relied upon ‘as against a member state which has not ensured that it is fully implemented in its internal legal order’ (see para 5, ante). For the same reasons, I take the view that the requirement to impose sanctions laid down by art 6 (see para 6, ante) now also has direct effect as against the member states, on the ground that the principles of Community law on which that requirement is based, has in the meantime likewise been defined sufficiently precisely in the court‘s case law discussed above (and will be further defined in the judgment to be delivered in this case). (It appears from the court’s case law that, as far as provisions of national law are concerned, the scope of a legislative provision has to be determined in the light of the interpretation given to that provision by the courts: see the recent judgment in Joined cases C-132/91, C-138/91 and C-139/91 Katsikas v Konstantinidis [1993] IRLR 179 at 183 (para 39); cf Freistaat Bayern v Eurim-Pharm GmbH Case C-347/89 [1991] ECR I-1747 at 1767 (para 15).) The view taken by the court in the judgments in von Colson, Harz and Johnston seems to me to have been overtaken in this respect.

Recognition of the (vertical) direct effect also of the requirement to impose sanctions contained in art 6 would of course foster the uniformity of Community law, since it would then no longer depend on national interpretation rules whether the national court was empowered to interpret its national law in conformity with Community law. The court has held that such uniformity as regards enforcement of the rights arising under Community law for individuals is a fundamental requirement of the Community legal order in Zucherfabrik Süderdithmarschen A-G v Hauptzollamt Itzehoe Joined cases C-143/88 and C-92/89 [1991] ECR I-415 at 542–544 (paras 25–32) with regard to national rules concerning the suspension of enforcement of national administrative measures. On that basis the court was prepared in that judgment to define the conditions for such suspension of enforcement in a uniform manner.

12. During the oral procedure in this case, the following anomaly was raised: employees in the service of public bodies (in the broad sense given to that expression in the court’s case law) are entitled, as against their employer, to rely upon provisions of directives which are sufficiently precise and unconditional—even, as in this case, with a view to obtaining compensation (see Foster v British Gas plc Case C-188/89 [1990] 3 All ER 897 at 922, [1991] 1 QB 405 at 428 (para 22))—even though employees in the private sector have no such remedy available against their employer. As appears from the judgment in Harz, where the discrimination challenged by the plaintiff in the main proceedings was committed by a company governed by private law, namely a German Gesellschaft mit beschränkter Haftung (limited liability company), employees in the private sector are entitled in the national courts only to invoke the obligation, to which I have already referred, to interpret national law in conformity with the directive.

In order to decide the present case—which involves an employee of a public body—it is not strictly necessary to consider that point. For the sake of

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completeness, I would argue that, in my view, the coherence of the court’s case law would benefit if the court were now also to confer horizontal direct effect on sufficiently precise and unconditional provisions of directives. The court’s case law concerning the judicial protection of individuals in relation to directives which are implemented late, insufficiently or incorrectly presents a satisfactory picture overall. However, as a result of the particular nature of the process of judicial interpretation, which proceeds on a case-by-case basis, that picture is not free of inconsistencies and distortions. I shall mention three. First, as a result of the broad construction put on the expression ‘member states’, provisions of directives have obtained (vertical) direct effect as against public institutions and undertakings but not as against private institutions or undertakings (with which the former are sometimes nevertheless in competition) (see, inter alia, the judgment in Foster, cited above), even though the negligence of ‘the’ member state in implementing directives can generally be attributed just as little to public bodies as it can to private bodies. Secondly, as a result of the requirement to interpret national law in conformity with directives, national courts are under a duty, in the event of a failure of the national legislature to implement a directive, to use their uttermost possibilities and powers in order to ensure that the directive is correctly incorporated into their national law (for the problems to which this has given rise in the United Kingdom see G de Búrca ‘Giving effect to European Community directives’ [1992] MLR 215–240). This can give rise to problems in connection with the delimitation of judicial powers in the relevant national law. Lastly, following the court’s judgment in Francovich v Italy [1991] ECR I-5357 the member states may be ordered in certain circumstances to pay compensation on account of their failure correctly to implement directives. But that—in principle, favourable—development does not remedy the fact that individuals who are operating in a member state which implemented the directive correctly and are therefore bound by the obligations to which they are subject under the directive are disadvantaged in comparison with individuals (perhaps their competitors) who are operating in a member state which has not yet correctly implemented the directive.

It appears to me that those inconsistencies and distortions may be set to rights by also recognising the direct effect of sufficiently precise and unconditional provisions of directives vis-à-vis individuals on whom the directive would have imposed obligations had it been correctly implemented. (See to this effect F Emmert ‘Horizontale Drittwirkung von Richtlinien? Lieber ein Ende mit Schrecken als ein Schrecken ohne Ende’, Europäische Wirtschafts-und Steuerrecht, 1992, p 56 ff. In that article the misapprehension is refuted that at the end of the period for implementation—not before—the recognition of horizontal direct effect would remove the distinction drawn by art 189 of the EEC Treaty between regulations and directives.)

13. Conclusion In the light of the above, I propose that the court should answer the national court’s third question as follows. The requirement to impose sanctions arising under art 6 of the directive—as has been specified in the meantime by the court’s case law on the basis of general principles of Community law—may be relied upon by individuals in any event against the member state and its public bodies and undertakings. In the event that the court should not accept that direct effect, the national courts should nevertheless interpret and apply their national law as far as possible in accordance with the system of sanctions prescribed by art 6 as it has been specified in the court’s case law.

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Is a statutory upper limit on compensation compatible with art 6 of the directive?

14. Section 65(1) of the 1975 Act provides that an industrial tribunal can make an order requiring compensation to be paid where it finds a complaint relating to sex discrimination in employment is well founded. Under s 65(2), however, the amount of such compensation may not exceed a specified limit. When Miss Marshall’s complaint was considered by the industrial tribunal, that limit was £6,250. Since then, it has been increased on several occasions, so that it now amounts to £10,000.

In its first question, the House of Lords wishes to establish whether such an upper limit is compatible with art 6 of the directive. In its second question, it asks whether it is essential to the due implementation of that article that the amount of compensation to be awarded should not be less than the amount of the actual loss found to have been sustained and that it should include an award of interest on the principal amount of the loss from the date of the unlawful discrimination to the date when compensation is paid.

15. Before answering those two questions, I would refer to the relationship between the two criteria applied by the court with regard to national systems for imposing sanctions in respect of provisions of Community law. Earlier (see para 9, ante) I referred to those two criteria as the criterion of ‘sufficient enforceability’ and the criterion of ‘comparability’. The two criteria are cumulative. In other words, it is not sufficient that an infringement of Community law should be repressed in a comparable way to an analogous infringement of national law if it appears that the sanctions imposed for infringements of Community law and national law are not capable of securing actual and effective judicial protection or do not have sufficient deterrent effect, and are therefore not adequate in relation to the damage sustained. In my view, this follows from the requirement as to the uniform application of Community law (see para 11, ante), which requires the same infringement of Community law to be repressed in a sufficiently effective and deterrent manner in all the member states.

I shall now discuss those two criteria individually in relation to the case before the court.

16. The criterion of sufficient enforceability The court has stated with regard to this criterion that ‘where a Member State chooses to penalize the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained … a purely nominal amount, such as, for example, the reimbursement of expenses incurred in submitting [a candidate’s] application’ does not satisfy that criterion (see the passage from the judgments in von Colson and Harz quoted at the end of para 8).

From the phrase that a penalty imposed in respect of a breach of the prohibition of discrimination must ‘in any event’ be adequate in relation to the damage sustained, the Commission appears to infer that national rules laying down an upper limit, such as those contained in s 65(2) of the 1975 Act, do not fulfil the criteria laid down by the court. I am not convinced by that argument (the phrase used ‘in any event’ (‘in elk geval’, ‘en tout cas’) does not seem to me to be synonymous with ‘in each [particular] case’ (‘in ieder [afzonderlijk] geval’, ‘dans chaque cas [particulier]’). As Ireland and the United Kingdom observe, the aim cannot be to exclude categorically any limit imposed on compensation, certainly not now that a number of Council directives—listed by the Commission itself in its written observations—provide for such a maximum

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limit (these are Directives (EEC) 80/987 of 20 October 1980, 85/374 of 25 July 1985 and 90/314 of 13 June 1990 on, respectively, wage claims of employees of insolvent undertakings, product liability and package holidays). By stating that ‘in any event’ the compensation should be adequate in relation to the damage sustained, the court wished, on the contrary, to make it clear that nominal compensation is not enough, as is clear from the passage of those judgments immediately following, which is also quoted above.

17. The fact that the compensation should in any event be ‘adequate in relation to the damage sustained’ must however mean, in my view, also that the court—in the present state of Community law and therefore in the absence of rules harmonising the divergent national rules governing liability—is prepared to accept less than compensation for the full damage sustained. In other words, the compensation must be adequate in relation to the damage sustained but does not have to be equal thereto.

That approach is not contradicted, but rather supported, by the judgment in Francovich which the court recently delivered in connection with member states’ liability on account of infringements of Community law in general and the failure properly to implement directives in particular. As far as the latter aspect is concerned, the court established in that judgment a number of uniform minimum conditions with regard to liability on the part of the member states. One such condition is that there must be ‘a causal link between the breach of the State’s obligation and the harm suffered by the injured parties’ (see [1991] ECR I-5357 (para 40)). However, no uniform rules relating to the nature or the extent of the damage can be derived therefrom. On the contrary, in that judgment the court states expressly that, ‘in the absence of Community legislation’, the member states should make reparation for the consequences of the harm caused in accordance with the rules of national law on liability (para 42). According to the next paragraph, that applies more specifically to the ‘substantive and procedural conditions laid down by the national law of the various Member States on compensation for harm’. Indeed, it is stated in that regard that such conditions ‘may not be less favourable than those relating to similar internal claims and may not be so framed as to make it virtually impossible or excessively difficult to obtain compensation’ (para 43).

The latter limiting conditions, as laid down in the judgment in Francovich, which national rules on liability have to satisfy do not differ essentially from the ‘comparability’ and ‘sufficient enforceability’ criteria mentioned above. (This is, moreover, no more than logical. The system of sanctions required under art 6 of the directive can be regarded as a lex specialis—namely in connection with compensation for discrimination prohibited by the directive—as against the Francovich liability which, more specifically with regard to the failure correctly to implement directives, constitutes the lex generalis.) As far as the latter criterion under consideration here is concerned, what is said in the judgment in Francovich is, in my view, consonant with the approach described above whereby ‘compensation which is adequate in relation to the damage sustained’—in, I repeat, the present state of Community law—does not necessarily have to be equal to full compensation. The grant of compensation ‘adequate in relation to the damage sustained’ is not, to my mind, such as to ‘make it virtually impossible … to obtain compensation’. Provision for adequate (rather than full) compensation in (in this case, specific) national rules can be regarded as ‘a substantive condition on compensation for harm’ in respect of which the judgment in Francovich refers to the internal legal orders of

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the member states. Since such adequate compensation, as defined below, does not make it ‘virtually impossible to obtain compensation’, it is sufficient under Community law. (This does not prevent national legal systems—and indeed art 215 of the EEC Treaty—from laying down, as a general rule, an obligation to compensate in full (or almost in full: see para 20, post). I consider nevertheless that it does not follow from Community law as it stands at present that a national legal system may not lay down a statutory limit on specific claims for damages, the precondition being that the criteria of sufficient enforceability and comparability discussed above are complied with.)

18. It therefore appears to me that to lay down national upper limits on compensation is, as Community law stands, not unlawful. However, the precondition is that the limit should be pitched high enough in order not to deprive the sanction of its ‘effective, uniform and deterrent’ nature and does not prevent its being ‘adequate in relation to the damage’ normally sustained as a result of an infringement.

However, I do not wish to let matters rest with that general analysis. In order to be more certain that the sanction by way of financial compensation for which a member state has opted is adequate in relation to the damage sustained, it should be such as to compensate adequately for the damage having regard to the most important components of damage which are traditionally taken into account in rules governing liability. I am thinking in this connection of loss of physical assets (damnum emergens), loss of income (lucrum cessans), moral damage and damage on account of the effluxion of time. (According to the statement of facts appended to the order for reference, the award of moral damages (injury to feelings) and of interest is a remedy available in the ordinary courts.) I shall return to the last mentioned head of damage in more detail later on.

As far as those four components of damage are concerned, the above does not mean that national legislation which does not provide expressly for compensation for each of those components is incompatible with Community law. It only means that, in assessing whether the compensation is adequate in relation to the damage, the national court must take account of each of those components. Indeed, in the absence of more precise Community rules, it is for that court to assess the adequacy of the ratio between the compensation and the damage in the actual case, having regard to the limits imposed on compensation by its national law. If the limitations are such that normally compensation is not, or scarcely, granted for one of those four types of damage (in so far as they are applicable having regard to the type of infringement), it cannot be said that the compensation, taken as a whole, is adequate in relation to the damage sustained.

19. In the case before the court, the industrial tribunal assessed the actual damage sustained by Miss Marshall at £19,405, made up of £1,000 in respect of injury to feelings, £8,220 in respect of loss of earnings, £2,475 in respect of, inter alia, loss of pension and £7,710 in respect of interest on the heads of financial loss. As far as that sum in respect of interest is concerned, it relates, as far as I can see, to interest accruing between the date of the unlawful discrimination and the date of the industrial tribunal’s decision of 21 June 1988.

The maximum compensation which Miss Marshall was entitled to receive under s 65(2) was £6,250, which is approximately one-third of her loss inclusive of interest up until the date of the industrial tribunal’s decision, or half of the loss exclusive of interest. Undoubtedly, that amount is more than merely nominal. But I have doubts whether the limit applied also permits the grant of

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compensation which is adequate in relation to the damage sustained, as is required by art 6 of the directive. The amount excludes compensation in respect of either at least one of the components to which I have referred, namely all the interest accruing up until the time of the tribunal’s decision (and, a fortiori, interest in respect of the subsequent period, a matter which I shall consider in para 26, post), or the three other components.

A further indication that the upper limit applied does not allow adequate compensation to be granted lies, in my view, in the additional payment made by the authority on grounds of fairness of £5,445. As a result of this additional payment, the compensation paid in this case is perhaps adequate in relation to the damage sustained up until the date of the industrial tribunal’s decision (the ratio being almost 2:3) but this does not result from the statutory upper limit. Another indication of the inadequacy of the sanction in force at the material time can be inferred from the fact that victims of unfair dismissal on account of discrimination in the United Kingdom can rely nowadays on important new legal remedies. (It appears from the United Kingdom’s observations—which are not contradicted in this respect by any of the other parties—that victims of unfair dismissal can now require themselves to be reinstated in their posts. If a recommendation to this effect by a court is ignored, they will be entitled to additional compensation of up to £10,650.)

20. The criterion of comparability As has already been stated, this criterion has to be applied cumulatively with the above. It entails that if more extensive compensation is provided for comparable infringements of national law—for instance compensation in full—than the adequate compensation required by Community law, the more extensive compensation should also apply in respect of infringements of Community law. In order to ascertain whether the United Kingdom (also) falls short in this respect, consideration should be given to the machinery for sanctions established by the 1975 Act at the material time.

Whilst the directive deals only with equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions, the 1975 Act also extends into other areas. Thus, a landlord who wishes to rent only to persons of a particular sex comes within the scope of the 1975 Act but not within that of the directive. Although, as a result the 1975 Act covers several areas, it draws a distinction as regards sanctions between discrimination in employment and discrimination in other areas. It brings the first type of discrimination within the jurisdiction of the industrial tribunals (see s 63(1) of the 1975 Act), which can award only an amount of compensation subject to a statutory upper limit and has no, or at least no statutory, power to award interest. Proceedings may be brought in respect of other discrimination in the county court, which may apply the same sanctions as the High Court (see s 66(4) of the 1975 Act). This means in practice that no statutory upper limit is laid down for any compensation for damage and that interest may be awarded. (According to the Commission’s written observations, both the industrial tribunals and the county court can also apply other sanctions (such as, for example, an order to reinstate the person who has suffered discrimination), but such an order is rare.) Consequently, the principle of compensation in full applies as regards such other discrimination. (The principle of compensation in full (or virtually in full: differences remain between the national legal systems, for instance in connection with moral damage or unforeseen damage) is, indeed, the system common to the laws of the member states. This does not prevent there being in all countries and even in Community law itself (see para 16, ante) limits applied to specific damage claims for various reasons, such as

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exist in the United Kingdom in respect of the rules at issue in this case. Greater uniformity in this sphere can be contemplated only by the Community legislature.)

21. At first sight, one might infer from this that the United Kingdom proceeds less diligently against infringements of Community law (sex discrimination in employment) than it does against infringements of analogous national law (sex discrimination in other areas). In my view, such an inference is not justified. There is a good explanation for the distinction made by the United Kingdom: the industrial tribunals set up in 1965 deal with all complaints relating to unfair dismissal, a statutory tort introduced by the Employment Protection (Consolidation) Act 1978. Thus complaints based on racial discrimination in employment are also dealt with by an industrial tribunal and the compensation which may be awarded in such cases is also subject to upper limits identical to those laid down in s 65(2) of the 1975 Act (see s 54 of the Race Relations Act 1976).

Instead of opting for a legal system in which all complaints relating to sex discrimination (irrespective as to whether they relate to employment or some other field) are dealt with by one court, the United Kingdom legislature opted for a legal system in which all claims based on unfair dismissal in the field of employment are dealt with by one court in accordance with specific substantive and procedural rules. That court has jurisdiction over questions of unfair dismissal in the field of employment, irrespective as to whether the dismissal was based on discrimination on grounds of sex, race or some other unlawful criterion, or was unlawful for other reasons, and irrespective as to whether the complaint was based on national or Community law. Both options appear to me to be of equal validity. Therefore, it cannot be inferred from the option chosen by the United Kingdom that less effective sanctions are imposed in that country in respect of Community law than are imposed in respect of corresponding national law.

I therefore consider that, as far as the criterion of comparability is concerned, the limit on compensation imposed by s 65(2) of the 1975 Act does not conflict with art 6 of the directive.

Is a possible lack of power to award interest compatible with art 6 of the directive?

22. It appears from the statement of facts appended to the order for reference that ‘there was at the relevant time no power—or alternatively the relevant provisions of English law were ambiguous as to whether there was a power—in the industrial tribunal to award interest on, or as an element of, compensation for an act of unlawful sex discrimination in relation to employment’.

I would first point out that a national court which determines that its national law is not unequivocal should in any event interpret that law in such a way that it is conformity with the provisions of directives (in this case art 6 of Directive 76/207). It is established that that obligation also applies in respect of national law which was already in existence before the directive in an area which was later covered thereby (see para 10, ante). That obligation holds good even if art 6 of the directive were to have no (vertical, let alone horizontal) direct effect in respect of sanctions. If the rules on sanctions laid down by art 6 do indeed have direct effect, as it is argued above (see paras 11–13, ante), rules conflicting with that article should of course in any event not be applied.

Page 613 of [1993] 4 All ER 586

23. Compensatory versus legal interest As appears from the passage quoted in para 22, the preliminary questions relate to interest granted ‘on, or as an element of, compensation’. Indeed, in the second part of its second question for a preliminary ruling, the House of Lords seeks to establish whether correct implementation of art 6 of the directive requires the compensation to include interest on the principal amount from the date of the unlawful discrimination to the date when compensation is paid.

In my view, in answering this question two periods of time, and therefore also two types of interest, should be distinguished. On the one hand, there is interest, to which I shall refer as ‘legal interest’, which as a rule begins to run as from the date of delivery of the judgment (in so far as it is upheld on appeal) establishing the amount of compensation as assessed on the date of the judgment (I say ‘as a rule’, since sometimes legal interest starts to run from the date of the document by which the proceedings were brought before the court). This is the interest on the compensation awarded by the court in its judgment. On the other hand, there is interest, which I shall refer to as ‘compensatory interest’, which is a component of the total compensation for the unlawful conduct the amount of which, as I have just mentioned, is determined by the court. Whether such interest is due depends on the extent to which the court determining the amount of the damage could take account of the development of the damage up until the date of its judgment (at first instance and, where applicable, on appeal). If it concludes the calculation of the damage at an earlier date, for instance because it lacks reliable data concerning the damage up to the date of judgment or, as in the present case, because the damage relates only to a period which has expired (long since) at the time of delivery of the judgment, it should—as the industrial tribunal itself did in this case—add interest to the amount of compensation up to the date of its decision. (The pecuniary loss determined by the industrial tribunal related primarily (apart from interest) to Miss Marshall’s loss of salary for the period between her unfair dismissal on her 62nd birthday and the date when she reached the age of 65 (that is to say when she would have reached pensionable age if she had not been subject to discrimination) and her loss of pension as a result of her premature dismissal.) Such interest is awarded as a component of the compensation.

I would emphasise this distinction, since I consider that the answer to the question which has been put differs according to the type of interest. Before I consider this, I shall briefly examine whether guidance can be obtained from the court’s case law with regard to the award of interest. (Up to now, I have avoided the use of the expression ‘default interest’. That expression is more general: it encompasses both types of interest to which I have referred, namely compensatory and legal interest, and covers all interest awarded on account of effluxion of time before or after judgment.)

24. Case law of the court on the award of interest First I shall consider the case law on the award of interest in proceedings based on arts 178 and 215 of the EEC Treaty. This established case law certainly does not leave any doubts subsisting as to the permissibility of a claim for the grant of interest. As the court held in the judgment in Sofrimport:

‘As the claim relates to the non-contractual liability of the Community under the second paragraph to Article 215, it must be considered in the light of the principles common to the legal systems of the Member States to which that provision refers. According to those principles a claim for interest is, as a general rule, permissible. On the basis of the criteria adopted by the Court in similar cases, the obligation to pay interest arises

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on the date of this judgment inasmuch as it establishes the obligation to make good the damage …’ (See Sofrimport SARL v EC Commission Case C-152/88 [1990] ECR I-2477 at 2512 (para 32), subsequently confirmed by Mulder v EC Council and Commission Joined cases C-104/89 and C-37/90 [1992] ECR I-3061 (para 35). See previously also Ireks-Arkady GmbH v EC Council and Commission Case 238/78 [1979] ECR 2955 at 2975 (para 20), DGV, Deutsche Getreideverwertung und Rheinische Kraftfutterwerke GmbH v EC Council and Commission Joined cases 241, 242 and 245 to 250/78 [1979] ECR 3017 at 3041 (para 22), Interquell Stärke-Chemie GmbH & Co v EC Council and Commission Joined cases 261 and 262/78 [1979] ECR 3045 at 3066 (para 23), P Dumortier Frères SA v EC Council Joined cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 [1979] ECR 3091 at 3118 (para 25), P Dumortier Frères SA v EC Council Joined cases 64 and 113/76, 167 and 239/78 27, 28 and 45/79 [1982] ECR 1733 at 1746 (para 11), Pauls Agriculture Ltd v EC Council and Commission Case 256/81 [1983] ECR 1707 at 1721 (para 17) and Birra Wührer SpA v EC Council and Commission Joined cases 256, 257, 267/80, 5 and 51/81 and 282/82 [1984] ECR 3693 at 3732 (para 37).)

That judgment lies somewhere between compensatory and legal interest as I have defined those expressions. In my view, a mixture of the two is involved (and, as a result, default interest in general: see para 23, ante), since the interest arises on the date of the judgment laying down the obligation to pay compensation, which is a date which in ‘art 215 cases’ does not necessarily coincide with the date on which the court itself, in the absence of an agreement between the parties as to the amount of damage, determines the extent of the damage.

It should further be noted that the amount of the interest awarded in the case law which I have cited varies. Initially, a rate of 6% was employed, later in the Sofrimport judgment [1990] ECR I-2477 at 2512 (para 32), it was increased to 8%. In Mulder’s case [1992] ECR I-3061 (para 35), which I have cited, it was added that that rate should ‘not exceed the rate claimed in the forms of order sought in the applications’. In another case, concerning an application for suspension of operation of a decision under art 39 of the ECSC Treaty (and hence not a claim based on art 178 or 215 of the EEC Treaty), the President laid down the following condition for suspension of the operation of the relevant decision:

‘… that the applicant first provides a bank guarantee for the payment of the fine imposed by that decision together with any default interest which may be calculated, for the purposes of this order, at 1% above the discount rate fixed by the Banque de France.’ (See the order of the President of the court in Union Sidérurgique du Nord et de l’Est de la France ‘Usinor’ v EC Commission Case 78/83R [1983] ECR 2183 at 2189–2190 (para 1 of the operative part).)

25. Although the court’s staff case law is concerned with cases coming under the special rules of the Staff Regulations, I would not leave it completely out of account, since it nevertheless also applies other provisions of Community law.

Thus, it appears from the relevant judgments that considerations of fairness may play a role with regard to the grant of interest. As early as 1978 in Leonardini v EC Commission Case 115/76 [1978] ECR 735 at 750, for example, the court held as follows:

Page 615 of [1993] 4 All ER 586

‘35 … it appears reasonable to fix the date from which default interest should be calculated at 1 September 1968 …

37. Finally, default interest at the rate of 8% per annum in respect of the above years by way of damages appears justified in the circumstances of the case, having regard inter alia to the fact that it is a fixed rate and to the lengthy delay preceding settlement of the claims arising from the accident.’ (My emphasis.)

Those cases further confirm that a party entitled to compensation by virtue of a decision of the court can also claim default interest. The Commission refers in this connection to the judgment in Samara v EC Commission Case 21/86 [1987] ECR 795. That case was concerned with a decision annulled by the court by judgment of 15 January 1985 (see Samara v EC Commission Case 266/83 [1985] ECR 189) classifying an official in a particular grade and step. The Commission complied with that judgment only in part and after a delay. As a consequence, the court by the judgment in Case 21/86 granted Miss Samara default interest on the higher salary to which she was entitled as a result of her reclassification in a higher step. It held as follows ([1987] ECR 795 at 807 (para 9)):

‘That being so, proper compliance with the judgment demands that, in order to put the applicant back in the position which should lawfully have been hers, account be taken of the loss which she has incurred by reason of the fact that she was restored to that position only after an appreciable lapse of time and that she could not have the use of the sums to which she was entitled on the dates on which they would normally have fallen due. To that end the applicant should be awarded default interest at a flat rate of 8% per annum, running from the date on which each instalment became due until final settlement.’

26. Is there an obligation to pay interest under art 6 of the directive? The court’s case law which I have discussed above indicates in any event that it is possible under Community law to award interest on account of the time elapsed between the determination by the court of the unlawful act which gives rise to the obligation to pay compensation and therefore certainly as from the judicial decision determining the amount of the damage. But is there also any obligation to that effect?

In this connection, the distinction between compensatory and legal interest is important. I shall first consider legal interest (on which the industrial tribunal made no pronouncement). In my view, it follows from the requirement for judicial protection laid down in art 6 of the directive—which, according to the court’s present case law, has direct effect in any event vis-à-vis the member states (see para 5, ante)—that there is an obligation to pay legal interest in full as from the judgment in which the first court determined the amount of the damage sustained, in so far as that judgment is subsequently definitively confirmed. As far as that type of interest is concerned, it follows that no statutory upper limit can be relied upon in order to limit the amount of damage. As the court held in the judgment in Johnston v Chief Constable of the Royal Ulster Constabulary Case 224/84 [1986] 3 All ER 135 at 156, [1987] QB 129 at 147–148 (paras 18–19) (cited above in para 5), ‘The requirement of judicial control stipulated by [art 6 of the directive] reflects a general principle of law [to the effect that] all persons have the right to obtain an effective remedy in a competent court’ against discrimination prohibited by the directive. To my mind, that principle of Community law also requires that, in so far as the national legal order gives people a right of appeal or other legal remedies against

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the decision of the first court, they must be able to avail themselves of those avenues without being disadvantaged financially. This implies that they should be compensated for the delay in the payment of the compensation resulting from the appeal or other legal remedies. Otherwise it would mean that a party claiming compensation would be penalised financially if he decided to appeal against a judicial decision not affording him satisfaction and he might even be induced not to take such a step for reasons unrelated to the law. Otherwise it would also mean that the party ordered to pay compensation in the proceedings at first instance would be encouraged to appeal in any event in view of the financial advantage which he might obtain thereby.

The above is particularly relevant in the present case. Already in the judgment of 26 February 1986 the court interpreted art 5(1) of the directive to the effect that discrimination against Miss Marshall could be based thereon. As a result, the Court of Appeal remitted the case on 22 July 1986 to the industrial tribunal in order to determine the compensation payable. On 21 July 1988 the industrial tribunal determined the amount of compensation at £19,405. This was subsequently reduced as a result of the Court of Appeal applying the statutory upper limit, in so far as it was not already paid by the authority (see para 2 above). The present case is concerned with the application of that statutory upper limit. In my view, if it is determined that the upper limit was applied unlawfully, legal interest should certainly be paid on the amount which was wrongfully reduced (unless the damage resulting from the delay in payment is compensated for by a subsequent court decision or in some other way) as from the date of the industrial tribunal’s decision.

27. This answers only part of the preliminary question as it was put by the House of Lords. The question relates to all interest due from the date of the unlawful discrimination to the date when compensation is paid. I should therefore further consider to what extent Community law entails an obligation to award compensatory interest as a component of the compensation determined by the first court. As I have already mentioned, the interest of £7,710 awarded by the industrial tribunal constitutes such compensatory interest. It relates to the damage sustained by Miss Marshall up until the date of the tribunal’s decision.

That interest is a component, in the full sense of the word, of the damage which Miss Marshall sustained as a result of and as from the discrimination which was found to exist until the damage was quantified by the industrial tribunal. As regards the damage, I have already stated in general that an upper limit imposed on compensation by national law—where it does not enable an important component of the damage to be compensated for by the award of compensatory interest—cannot result in adequate compensation as required by art 6 of the directive for a victim of discrimination.

28. For the sake of completeness, I would add a few words on the rate of interest. In principle, in the absence of Community legislation, this is a matter for the national court to decide. However, in order for the interest applied to constitute adequate compensation, it should be commensurate with a claimant’s loss of purchasing power caused by the effluxion of time. In my view, this means that the rate may vary from country to country, since it is related to the inflation rate obtaining in the country concerned and to the usual interest paid on capital.

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Conclusion

29. In conclusion, I propose that the court should answer the questions put by the House of Lords, in the order in which I have considered them in my opinion, as follows:

‘1. If it should appear that the national legislation of a member state does not embody an adequate system of sanctions, as is required by the purpose of Council Directive (EEC) 76/207 of 9 February 1976 and art 6 thereof, a person who is a victim of discrimination prohibited by the directive is entitled to rely directly on art 6 of that directive in any event as against a public body of that member state.

2. Where a member state’s national legislation provides for the payment of compensation as one remedy available by judicial process to a person who has been subjected to unlawful discrimination of a kind prohibited by Directive 76/207, in the present state of Community law the member state is not automatically guilty of a failure to implement art 6 of the directive by reason of the imposition by the national legislation of an upper limit.

3. However, such an upper limit is incompatible with art 6 of Directive 76/207 if it has the result that the compensation—taking account of the most important components of compensation, including compensatory interest—is not adequate in relation to the damage sustained. Furthermore, such an upper limit may not result in Community law being subject to less effective sanctions than corresponding national law.

4. As a result of the requirement for judicial protection laid down in art 6 of Directive 76/207, which may be relied upon directly by individuals, legal interest is due in the event of an appeal or some other legal remedy as from the date of the judgment in which the first court determined the amount of the damage sustained in so far as that judgment is subsequently definitively confirmed.’

2 August 1993. THE COURT OF JUSTICE delivered the following judgment.

1. By order of 14 October 1991, received at the court on 17 October 1991, the House of Lords referred to the court for a preliminary ruling under art 177 of the EEC Treaty three questions on the interpretation of art 6 of the Council Directive (EEC) 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

2. Those questions were raised in connection with a dispute between Miss Marshall and her former employer, Southampton and South West Hampshire Area Health Authority (hereinafter ‘the health authority’), concerning a claim for compensation for damage sustained by Miss Marshall as a result of her dismissal by the health authority.

3. The claim is based on the illegality of that dismissal which is not contested in the main proceedings, the court having held, in the judgment of 26 February 1986 in Marshall v Southampton and South West Area Health Authority (Teaching) Case 152/84 [1986] 2 All ER 584, [1986] QB 401, in reply to questions submitted for a preliminary ruling by the Court of Appeal, that art 5(1) of the directive is to be interpreted as meaning that a general policy of termination of employment whereby a woman’s employment is terminated solely because she has attained or passed the qualifying age for a state person, that age being

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different under national legislation for men and for women, constitutes discrimination on grounds of sex contrary to the directive.

4. The dispute in the main proceedings arises because the industrial tribunal, to which the Court of Appeal remitted the case to consider the question of compensation, assessed Miss Marshall’s financial loss at £18,405, including £7,710 by way of interest, and awarded her compensation of £19,405, including a sum of £1,000 compensation for injury to feelings (see [1988] 3 CMLR 389).

5. It appears from the case file that, according to s 65(1)(b) of the Sex Discrimination Act 1975, where an industrial tribunal finds that a complaint of unlawful sex discrimination in relation to employment is well founded, it shall, if it considers it just and equitable to do so, make an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant. Under s 65(2) of the 1975 Act, however, the amount of compensation awarded may not exceed a specified limit, which at the relevant time was £6,250.

6. It also appears from the case file that at that time an industrial tribunal had no power—or at least that the relevant provisions were ambiguous as to whether it had such a power—to award interest on compensation for an act of unlawful sex discrimination in relation to employment.

7. The industrial tribunal held that s 35A of the Supreme Court Act 1981 entitled it to include in its award a sum in respect of interest. In its view, compensation was the only appropriate remedy in Miss Marshall’s case, but the limit laid down by s 65(2) of the 1975 Act rendered that compensation inadequate and in breach of art 6 of the directive.

8. Following the industrial tribunal’s decision, the health authority paid Miss Marshall the sum of £5,445 in addition to the £6,250 corresponding to the above-mentioned statutory limit which it had paid even before the case had been remitted to the industrial tribunal. However, it appealed against the inclusion in the award of £7,710 in respect of interest.

9. After the Employment Appeal Tribunal allowed the health authority’s appeal (see [1990] ICR 6) and the Court of Appeal dismissed Miss Marshall’s further appeal (see [1991] ICR 136), she appealed to the House of Lords, which decided to stay the proceedings and to submit to the Court of Justice the following questions for a preliminary ruling:

‘1. Where the national legislation of a Member State provides for the payment of compensation as one remedy available by judicial process to a person who has been subjected to unlawful discrimination of a kind prohibited by Council Directive 76/207/EEC of 9th February 1976 ("the Directive"), is the Member State guilty of a failure to implement Article 6 of the Directive by reason of the imposition by the national legislation of an upper limit of £6,250 on the amount of compensation recoverable by such a person?

2. Where the national legislation provides for the payment of compensation as aforesaid, is it essential to the due implementation of Article 6 of the Directive that the compensation to be awarded—(a) should not be less than the amount of the loss found to have been sustained by reason of the unlawful discrimination, and (b) should include an award of interest on the principal amount of the loss so found from the date of the unlawful discrimination to the date when the compensation is paid?

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3. If the national legislation of a Member State has failed to implement Article 6 of the Directive in any of the respects referred to in questions 1 and 2, is a person who has been subjected to unlawful discrimination as aforesaid entitled as against an authority which is an emanation of the Member State to rely on the provisions of Article 6 as overriding the limits imposed by the national legislation on the amount of compensation recoverable?’

10. Reference is made to the report for the hearing for a fuller account of the facts, the relevant legislation and the written observations submitted to the court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

Scope of the questions

11. In essence, the questions put by the House of Lords ask whether it follows from the directive that a victim of sex discrimination on the part of an authority which is an emanation of the state is entitled to full reparation for the loss and damage he or she has sustained and whether art 6 of the directive enables such a person to contest the applicability of national legislation which is intended to give effect to the directive but sets limits to the compensation recoverable. The fundamental problem is therefore to determine the meaning and scope of art 6 having regard to the principles and aims of the directive.

12. It should, however, be noted, given the tenor of those questions read in the light of the preceding judgments of the Court of Appeal and the Employment Appeal Tribunal, that the House of Lords has refrained from asking the court to rule on the point, raised by the United Kingdom, as to whether a court or tribunal, such as an industrial tribunal, specially established to deal with employment disputes may, or must, disregard the statutory limits on its powers in order to satisfy the requirements of Community law.

13. The United Kingdom and Ireland also submitted that, even though the preliminary questions are concerned both with the statutory limit and the issue of interest, the court should confine its reply to the latter issue, since the appeal brought by Miss Marshall before the House of Lords turns solely on whether the industrial tribunal has the power to grant interest and the role of the Court of Justice is to rule on real issues, not on hypothetical questions.

14. As to that, it is for the national court, subject to the court’s assessment of its own jurisdiction, to determine what points of Community law are to be put to the Court of Justice so it can rule upon all the points of interpretation necessary to resolve the dispute pending before the national court.

15. In this case, the House of Lords has made a point of stating at para 12 of its order that, although the appeal concerns the power of the industrial tribunal to award interest in cases of unlawful sex discrimination in connection with an employment relationship, the limit on compensation imposed by s 65(2) of the 1975 Act is also in issue and was in issue before the Court of Appeal. The House of Lords takes the view that, if that provision were applicable to the compensation awarded to Miss Marshall, the question of interest would thereby be resolved since the capital element of her loss exceeded the statutory limit.

16. In those circumstances, there is nothing to prevent all the aspects of the national court’s questions from being considered.

Meaning and scope of art 6 of Directive 76/207

17. As the court has consistently held, the third paragraph of art 189 of the EEC Treaty requires each member state to which a directive is addressed to

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adopt, in its national legal system, all the measures necessary to ensure that its provisions are fully effective, in accordance with the objective pursued by the directive, while leaving to the member state the choice of the forms and methods used to achieve that objective.

18. It is therefore necessary to identify the objectives of the directive and in particular to see whether, in the event of a breach of the prohibition of discrimination, its provisions leave member states a degree of discretion as regards the form and content of the sanctions to be applied.

19. The purpose of the directive is to put into effect in the member states the principle of equal treatment for men and women as regards the various aspects of employment, in particular working conditions, including the conditions governing dismissal.

20. To that end, art 2 establishes the principle of equal treatment and its limits, whilst art 5(1) defines the scope of that principle with regard specifically to working conditions, including conditions governing dismissal, to the effect that men and women are to be guaranteed the same conditions without discrimination on grounds of sex.

21. As the court held in Marshall Case 152/84, cited above, since art 5(1) prohibits generally and unequivocally all discrimination on grounds of sex, in particular with regard to dismissal, it may be relied upon as against a state authority acting in its capacity as an employer, in order to avoid the application of any national provision which does not conform to that article.

22. Article 6 of the directive puts member states under a duty to take the necessary measures to enable all persons who consider themselves wronged by discrimination to pursue their claims by judicial process. Such obligation implies that the measures in question should be sufficiently effective to achieve the objective of the directive and should be capable of being effectively relied upon by the persons concerned before national courts.

23. As the court held in the judgment in von Colson and Kamann v Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891 at 1907 (para 18), art 6 does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves member states free to choose between the different solutions suitable for achieving the objective of the directive, depending on the different situations which may arise.

24. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. As the court stated in von Colson and Kamann (at 1908 (para 23)), those measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer.

25. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. In the event of discriminatory dismissal contrary to art 5(1) of the directive, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained.

26. Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules.

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The first and second questions

27. In its first question, the House of Lords seeks to establish whether it is contrary to art 6 of the directive for national provisions to lay down an upper limit on the amount of compensation recoverable by a victim of discrimination.

28. In its second question, the House of Lords asks whether art 6 requires (a) that the compensation for the damage sustained as a result of the illegal discrimination should be full and (b) that it should include an award of interest on the principal amount from the date of the unlawful discrimination to the date when compensation is paid.

29. The court’s interpretation of art 6 as set out above provides a direct reply to the first part of the second question relating to the level of compensation required by that provision.

30. It also follows from that interpretation that the fixing of an upper limit of the kind at issue in the main proceedings cannot, by definition, constitute proper implementation of art 6 of the directive, since it limits the amount of compensation a priori to a level which is not necessarily consistent with the requirement of ensuring real equality of opportunity through adequate reparation for the loss and damage sustained as a result of discriminatory dismissal.

31. With regard to the second part of the second question relating to the award of interest, suffice it to say that full compensation for the loss and damage sustained as a result of discriminatory dismissal cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment.

32. Accordingly, the reply to be given to the first and second questions is that the interpretation of art 6 of the directive must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid.

The third question

33. In its third question, the House of Lords seeks to establish whether a person who has been injured as a result of discriminatory dismissal may rely, as against an authority of the state acting in its capacity as employer, on art 6 of the directive in order to contest the application of national rules which impose limits on the amount of compensation recoverable by way of reparation.

34. It follows from the considerations set out above as to the meaning and scope of art 6 of the directive that that provision is an essential factor for attaining the fundamental objective of equal treatment for men and women, in particular as regards working conditions, including the conditions governing dismissal, referred to in art 5(1) of the directive, and that, where, in the event of discriminatory dismissal, financial compensation is the measure adopted in order to restore that equality, such compensation must be full and may not be limited a priori in terms of its amount.

35. Accordingly, the combined provisions of arts 6 and 5 of the directive give rise, on the part of a person who has been injured as a result of discriminatory dismissal, to rights which that person must be able to rely upon before the

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national courts as against the state and authorities which are an emanation of the state.

36. The fact that member states may choose among different solutions in order to achieve the objective pursued by the directive depending on the situations which may arise cannot result in an individual’s being prevented from relying on art 6 in a situation such as that in the main proceedings where the national authorities have no degree of discretion in applying the chosen solution.

37. It should be pointed out in that connection that, as appears in particular from the judgment in Francovich v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 (para 17), the right of a state to choose among several possible means of achieving the objectives of a directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone.

38. Accordingly, the reply to be given to the third question is that a person who has been injured as a result of discriminatory dismissal may rely on the provisions of art 6 of the directive as against an authority of the state acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation.

Costs

39. The costs incurred by the United Kingdom, the Federal Republic of Germany, Ireland and the Commission of the European Communities, which have submitted observations to the court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, the court, in answer to the questions referred to it by the House of Lords, by order of 14 October 1991, hereby rules: (1) the interpretation of art 6 of the Council Directive (EEC) 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid; (2) a person who has been injured as a result of discriminatory dismissal may rely on the provisions of art 6 of the directive as against an authority of the state acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation.

Carolyn Toulmin  Barrister.

Mortgage Corp Ltd v Nationwide Credit Corp Ltd

[1993] 4 All ER 623

Categories:        LAND; Land Registration        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        DILLON, KENNEDY LJJ AND SIR ROGER PARKER        

Hearing Date(s):        7, 14 MAY 1993        

Land registration – Priority – Effect of notices on dispositions – Priority of legal charges – Plaintiffs’ charge first in time – Defendants’ charge protected by notice – Plaintiffs’ charge not protected by notice – Whether plaintiffs’ charge having priority over defendants’ charge notwithstanding defendants’ charge protected by notice – Land Registration Act 1925, s 52.

On 10 July 1989 the registered proprietors of a residential property executed a legal charge (the plaintiffs’ charge) in favour of the plaintiffs to secure an advance of £367,500. On 31 July 1989 they executed a further legal charge (the defendants’ charge) in favour of the defendants to secure an advance of £60,000. On 14 August 1989 a notice under s 49a of the Land Registration Act 1925 was entered in the charges register of the title in respect of the defendants’ charge. No application was made to the Land Registry to register the plaintiffs’ charge as a registered charge or to register any notice or any other protection of it. In April 1991 the plaintiffs obtained an order for possession against the registered proprietors and sold the property for £300,000. Since the proceeds of sale were not sufficient to repay both the plaintiffs and the defendants in full, it was agreed that the defendants would withdraw their s 49 notice in order to enable the sale to be completed and that the question of priority between the plaintiffs’ and the defendants’ charges would be determined by an application to the court after completion to determine the priority of the charges. The judge held that the plaintiffs’ charge had priority over the defendants’ charge even though the defendants’ charge was protected by notice in the charges register of the title to the land under s 49 of the 1925 Act and the plaintiffs’ was not. The defendants appealed.

Held – Under s 106b of the 1925 Act a charge protected by notice under s 49 but not registered only took effect in equity until it became a registered charge, so that priority in time of creation gave the better equity. Further, under s 52(1)c a disposition by the registered proprietor took effect subject to all interests protected by notice at the date of registration or entry of notice on the register of the disposition only if the interest protected by the notice was valid apart from the notice and if the interest protected by the notice would not, independently of the 1925 Act, be overridden by the rival disposition. Although the defendants’ charge was undoubtedly valid it was overridden by the plaintiffs’ charge by virtue of s 106 of the 1925 Act, and, if considered

Page 624 of [1993] 4 All ER 623

independently of the Act, could only take effect as a legal charge on the equity of redemption in the property subject to the plaintiffs’ charge. It followed that the plaintiffs’ charge had priority over the defendants’ charge. The appeal would therefore be dismissed (see p 626 e f, p 628 b to h and p 629 b, post).

Notes

For effect of notices on dispositions, see 26 Halsbury’s Laws (4th edn) para 1321, and for cases on the subject generally, see 39(1) Digest (Reissue) 169–172, 1681–1690.

For the Land Registration Act 1925, ss 49, 52, 106, see 37 Halsbury’s Statutes (4th edn) 559, 563, 606.

Cases referred to in judgments

Barclays Bank Ltd v Taylor [1973] 1 All ER 752, [1974] Ch 137, [1973] 2 WLR 293, CA.

Cory v Eyre (1863) 1 De GJ & Sm 149, 46 ER 58.

Farrand v Yorkshire Banking Co (1888) 40 Ch D 182.

Grace Rymer Investments Ltd v Waite [1958] 2 All ER 777, [1958] Ch 831, [1958] 3 WLR 337, CA.

White Rose Cottage, Re [1964] 1 All ER 169, [1964] Ch 483, [1964] 2 WLR 396; rvsd in part [1965] 1 All ER 11, [1965] Ch 940, [1965] 2 WLR 337, CA.

Cases also cited or referred to in skeleton arguments

Clark v Chief Land Registrar [1993] 2 All ER 936, [1993] Ch 294.

Dixon v Muckleston (1872) LR 8 Ch App 155.

Watts v Waller [1972] 3 All ER 257, [1973] QB 153, CA.

Appeal

The defendants, Nationwide Credit Corp Ltd, appealed from the order of David Neuberger QC, sitting as a deputy judge of the High Court in the Chancery Division on 14 July 1992, whereby it was declared that a charge made on 10 July 1989 between Ian Richard Laslett and Sophia Laslett and the plaintiffs, Mortgage Corp Ltd, of the freehold land known as 1 Park Gate, Blackheath enjoyed priority over a charge of the same land made on 31 July 1989 between Ian Richard Laslett and Sophia Laslett and the defendants. The facts are set out in the judgment of Dillon LJ.

Thomas Dumont (instructed by Brand Montague, Harrow) for the defendants.

David Hodge (instructed by Reynolds Porter Chamberlain) for the plaintiffs.

Cur adv vult

14 May 1993. The following judgments were delivered.

The Judge Rapporteur (G F Mancini) presented the following report for the hearing.

DILLON LJ. This appeal, from a decision of David Neuberger QC sitting as a deputy judge of the High Court in the Chancery Division, raises a question of priority as between two charges on registered land. The judge held that a charge on the land in favour of the plaintiffs, Mortgage Corp Ltd, made on 10 July 1989, had priority to a charge on the same land in favour of the defendants, Nationwide Credit Corp Ltd, made on 31 July 1989, notwithstanding that the defendants’ charge was, and the plaintiffs’ was not, protected by a notice in the charges register of the title to the land under s 49 of the Land Registration Act 1925.

Page 625 of [1993] 4 All ER 623

The property in question is 1 Park Gate, Blackheath, as comprised in title no SGL 97325, and the registered proprietors at all material times were a Mr and Mrs Laslett. At the beginning of July 1989 the property was subject to three registered charges which had been created by Mr and Mrs Laslett, namely, in the order of their priorities, a first charge in favour of Mortgage Trust Ltd, a second charge in favour of National Westminster Bank Ltd, and a third charge in favour of Aitken Hume Ltd. The first and third charges imposed restrictions, which were duly entered in the proprietorship register of the title, that except under an order of the registrar no disposition by the proprietors of the land was to be registered without the consent of the proprietor for the time being of the charge.

On 10 July 1989 Mr and Mrs Laslett executed a legal charge in favour of the plaintiffs to secure an advance of the £367,500 with interest; this is the plaintiffs’ charge. Out of the money so advanced, all moneys due to National Westminster Bank Ltd, and Aitken Hume Ltd, under the second and third registered charges were paid off and forms 53 were duly obtained by the plaintiffs from those chargees, and all but £5,000 of the money due to the first chargee Mortgage Trust Ltd, was also paid off; but £5,000 remained due to Mortgage Trust Ltd.

On 31 July 1989, Mr and Mrs Laslett executed a legal charge in favour of the defendants to secure an advance of £60,000 with interest; this is the defendants’ charge. On 14 August 1989, a notice under s 49 of the 1925 Act in respect of the defendants’ charge was duly entered in the charges register of the title. It appears that the defendants had applied to register their charge as a registered charge, but that was not possible because (apart from any other reasons there may have been) of the restriction in the first charge to the Mortgage Trust Ltd, whose consent the defendants had not been able to obtain.

By 14 August 1989 no application had been made to the Land Registry to register the plaintiffs’ charge as a registered charge or to register any notice or other protection in respect of it. In fact, no application was made to the Land Registry in respect of the plaintiffs’ charge until many months later—well after the end of the period of priority conferred by their priority search against the title to the property at HM Land Registry.

The defendants had also made a priority search against the title, but that does not avail them because their charge has never been registered as a registered charge; it is merely protected by the notice for what that is worth. Under the priority rule—now r 6 of the Land Registration (Official Searches) Rules 1990, SI 1990/1361, but then an earlier rule in the same terms—priority is only granted if the instrument which effected the disposition for which priority is claimed is actually registered.

In the event, the plaintiffs, having obtained an order for possession against Mr and Mrs Laslett, exchanged contracts for the sale of the property on 26 April 1991 at a price of £300,000, and that sale was completed on 28 May 1991. At that date, there was, according to the plaintiffs, a sum of the order of £511,437·45 due to the plaintiffs on the security of their charge, and there was, according to the defendants, a sum of the order of £97,012·29 due to the defendants on the security of their charge. Since the proceeds of sale were obviously not enough to repay both in full, it was, as I understand it, agreed that the defendants would withdraw their notice in order to enable the sale to be completed, and the question of priority would be put to the court for decision after completion. The originating summons was accordingly issued by the plaintiffs on 3 June 1991.

Page 626 of [1993] 4 All ER 623

There is no difficulty as to the priorities of registered charges, since s 29 of the 1925 Act provides in clear terms that, subject to any entry to the contrary on the register, registered charges on the same land shall as between themselves rank according to the order in which they are entered on the register, and not according to the order in which they are created.

As regards charges, however, which for the time being are not registered charges, the first provision to be considered is s 106 of the 1925 Act, as substituted by s 26(1) of the Administration of Justice Act 1977. Section 106 provides as follows:

‘(1) The proprietor of any registered land may, subject to any entry to the contrary on the register, mortgage, by deed or otherwise, the land or any part of it in any manner which would have been permissible if the land had not been registered and, subject to this section, with the like effect.

(2) Unless and until the mortgage becomes a registered charge,—(a) it shall take effect only in equity, and (b) it shall be capable of being overridden as a minor interest unless it is protected as provided by subsection (3) below.

(3) A mortgage which is not a registered charge may be protected on the register by—(a) a notice under section 49 of this Act, (b) any such other notice as may be prescribed, or (c) a caution under section 54 of this Act …’

The effect of that, as I understand it, is that though a charge which is protected by a notice under s 49 of the 1925 Act will no longer be capable of being overridden as a minor interest, it will still only take effect in equity unless and until it becomes a registered charge.

Subject to the effect of the registration of a notice under s 49 of the 1925 Act in respect of an equitable charge, the general rule as to the priority of equitable charges is qui prior est tempore potior est jure (see for example Cory v Eyre (1863) 1 De GJ & Sm 149 at 167, 46 ER 58 at 65 per Turner LJ). This has been applied by this court in relation to competing equitable interests in registered land in Barclays Bank v Taylor [1973] 1 All ER 752, [1974] Ch 137.

There is no doubt that the main purpose of protecting an equitable charge by a notice under s 49 of the 1925 Act is to affect every subsequent purchaser or encumbrancer with notice of the charge: see Re White Rose Cottage [1965] 1 All ER 11 at 14, 18, [1965] Ch 940 at 949, 955 per Lord Denning MR and Harman LJ and see also the judgment of Wilberforce J in that case at first instance ([1964] 1 All ER 169 at 174, [1964] Ch 483 at 491).

But the actual protection accorded by the 1925 Act is apparently expressed in wider terms in certain sections. Thus s 20 of the 1925 Act, which is concerned with the effect of registration of dispositions of freeholds, provides that a disposition of the registered land for valuable consideration shall, when registered, confer on the transferee or grantee an estate in fee simple with the appropriate rights ‘subject—to the incumbrances and other entries, if any, appearing on the register …' This would include all matters protected by notices in the charges register, and prima facie the effect would be that if the plaintiffs had sold the land without having effected any registration or notice in the register in respect of their charge, their purchaser would have taken the land subject to the defendants’ charge protected by the notice registered on 14 August 1989.

The protection of a notice appears to go even further as against the proprietor of a registered charge. Section 27 of the 1925 Act provides that a registered

Page 627 of [1993] 4 All ER 623

charge shall take effect as a charge by way of legal mortgage or may contain an express demise or sub-demise. It is then provided by sub-s (3):

‘Any such demise or subdemise or charge by way of legal mortgage shall take effect from the date of delivery of the deed containing the same, but subject to the estate or interest of any person (other than the proprietor of the land) whose estate or interest (whenever created) is registered or noted on the register before the date of registration of the charge.’

This, standing alone, would mean that if the plaintiffs’ charge in the present case had been registered as a registered charge before the sale to the purchaser the plaintiffs’ charge would have ranked subject to the defendants’ charge and the moneys thereby secured, because the defendants’ charge was a charge, whenever created, noted on the register before the date of (assumed) registration of the plaintiffs’ charge. For the purposes of s 27(3) the dates of registration are crucial, and not the dates of the original execution of documents subsequently registered.

Mr Hodge has submitted, for the plaintiffs, that little weight can be attached to s 27(3) since s 27 was described by Lord Evershed MR in Grace Rymer Investments Ltd v Waite [1958] 2 All ER 777 at 783, [1958] Ch 831 at 849 as a section directed to procedure and form. But while that may apply to sub-ss (1) and (2), sub-s (3) is, in my judgment, clearly directed to the effect of the charge, demise or sub-demise.

One of the oddities in the present case is that it is not clear whether the plaintiffs’ charge was in fact registered as a registered charge before the sale of the property to the purchasers took place. On the other hand, there is a letter from the Land Registry of 19 March 1991, which says that the plaintiffs’ charge had been substantively registered under s 26 of the 1925 Act and this is apparently echoed in a further letter from another representative of the Land Registry. On the other hand, in the only affidavit sworn in the proceedings, it is said by the plaintiffs’ solicitor in relation to the plaintiffs’ charge that it was lodged in the registry for registration against the title in June 1990 but the registration was still pending at the date of the affidavit, 10 June 1991, which was after completion of the sale to the purchaser. In these circumstances, we must, I apprehend, conclude that it is not shown, on the balance of probabilities, that the plaintiffs’ charge was substantially registered as a registered charge. Consequently the defendants do not bring the case within s 27(3) of the 1925 Act.

It is anyhow necessary, however, to turn to s 52 of the 1925 Act, which is concerned with the effect of notices under s 49 of the Act. Section 52 provides as follows:

‘(1) A disposition by the proprietor shall take effect subject to all estates, rights, and claims which are protected by way of notice on the register at the date of the registration or entry of notice of the disposition, but only if and so far as such estates, rights, and claims may be valid and are not (independently of this Act) overridden by the disposition.

(2) Where notice of a claim is entered on the register, such entry shall operate by way of notice only, and shall not operate to render the claim valid whether made adversely to or for the benefit of the registered land or charge.’

The judge construed s 52(1) as applying only where the document which gave rise to the estate, right or claim protected by the notice on the register had

Page 628 of [1993] 4 All ER 623

been entered into at a date which was earlier than the date on which the disposition whose registration was in question had been made, that is as he put it, the effect of a notice is limited to giving priority to a person who has registered the notice only in relation to interests granted subsequently to his interest.

As I read s 52(1), the opening part applies generally irrespective of the date of the execution of the document which gave rise to the estate, right or claim protected by the notice on the register or the date of the making of the rival disposition which is to be registered or to be the subject of the entry of a later notice. So far as the opening part is concerned, the only relevant date is the date of registration or entry of notice. But the general effect of the opening part is then cut down by the final proviso, viz:

‘… but only if and so far as such estates, rights, and claims may be valid and are not (independently of this Act) overridden by the disposition.’

In the present case there is no difficulty over the first half of that proviso ‘so far as such estates, rights, and claims may be valid’, since the defendants’ charge is unquestionably valid.

It is therefore necessary to consider the second half of the proviso: ‘and are not (independently of this Act) overridden by the disposition.' As I see it, independently of the 1925 Act, the defendants’ charge is necessarily overridden by the plaintiffs’ charge. If, by virtue of s 106, neither charge having been registered, both are regarded as taking effect only in equity, then the equitable rule as to the priorities that qui prior est tempore potior est jure applies; if they are considered independently even of s 106 of the 1925 Act, then they are both charges by way of legal mortgage, and the later, in time, the defendants’ charge can only take effect as a charge on the equity of redemption in the property subject to the plaintiffs’ charge. I therefore agree with the judge’s conclusion, though I am not sure that I have followed quite the same course of reasoning as he did.

In my judgment, s 52 is enacted to prescribe the effect of a notice entered on the register. That may not necessarily be the same as the effect of a caution since the effect of a caution is prescribed by ss 54 and 55. The effect of a notice, as determined under s 52, will cut down any apparently wider effect that the general wording in other sections such as ss 20 and 27(3) would otherwise have had. The particular qualifications imposed by the proviso to s 52(1) are, first of all, that the interest protected by the notice must be valid apart from the notice and secondly that the interest protected by the notice would not independently of the 1925 Act be overridden by the rival disposition. Notice is indeed notice, but it does not give validity, if validity is not otherwise there, and it does not give priority which would not, apart from the 1925 Act, have been there. Therefore the plaintiffs’ charge has priority to the defendants’ charge.

Mr Dumont put forward a final submission for the defendants that the plaintiffs, by failing to register their charge, or enter notice of it in the register promptly, had acted negligently and so ought to be deprived of their priority, as happened in unregistered conveyancing when a first mortgagee negligently left the documents of title in the hands of the mortgagor, so as to leave it in the mortgagor’s power to create a second charge without disclosing the first charge. He referred to Farrand v Yorkshire Banking Co (1888) 40 Ch D 182. But I see no parallel in the present case. Either the defendants knew of the plaintiffs’ charge when they took their own charge (in which case they knew they were taking a second charge) or they must have supposed that they were taking a fourth

Page 629 of [1993] 4 All ER 623

charge, subject to the registered charges, of which they had notice from their search, in favour of the Mortgage Trust, the National Westminster Bank and Aitken Hume Ltd. They could not have supposed that they were taking a first charge on the property subject only to a mere £5,000 due to the Mortgage Trust.

For these reasons, I would dismiss this appeal.

KENNEDY LJ. I agree.

SIR ROGER PARKER. I also agree.

Appeal dismissed.

Celia Fox  Barrister.

R v Scarlett

[1993] 4 All ER 629

Categories:        CRIMINAL; Criminal Law        

Court:        COURT OF APPEAL, CRIMINAL DIVISION        

Lord(s):        BELDAM LJ, EBSWORTH AND TUCKEY JJ        

Hearing Date(s):        29 APRIL, 7 MAY 1993        

Criminal law – Manslaughter – Causing death by unlawful act – Direction to jury – Use of force – Use of force justified – Excessive force – Test of whether force excessive – Whether prosecution must show force was used intentionally or recklessly – Whether accused must have reasonable belief that circumstances called for degree of force used.

The appellant was the landlord of a public house. Ten minutes after closing time one evening the deceased, a large, heavily built man, came into the public house the worse for drink and approached the bar. The appellant told him that he would not serve him and eventually told him to get out or he would put him out. The deceased indicated that he would not leave voluntarily. The appellant then went to take hold of the deceased’s right arm to escort him from the bar but the deceased threw his arm round in an arc. The appellant, thinking the deceased might strike him, pinned his arms to his sides from behind and bundled him towards the door. He put the deceased with his back against the wall in the lobby to the public house but as he turned to go back into the bar the deceased fell backwards down a flight of five steps into the street, apparently striking his head. He was subsequently found to have sustained a serious head injury from which he later died. The appellant was charged with manslaughter. At his trial the prosecution case was that when bundling the deceased towards the door the appellant had used excessive force, thus committing an unlawful act, and that by that excessive force he had imparted such momentum to the deceased that his fall was a consequence of the unlawful act and his death was consequently manslaughter. The judge directed the jury that if they concluded that the appellant had used more force than was necessary in the circumstances in the bar, and if they were satisfied that that had caused the deceased to fall and strike his head, the appellant was guilty of manslaughter. The appellant was convicted. He appealed against his conviction on the ground that the judge wrongly directed the jury.

Page 630 of [1993] 4 All ER 629

Held – Where an accused was justified in using some force and could only be guilty of an assault if the force used was excessive, the jury should be directed that he could only be guilty of an assault if the prosecution proved that he had acted with the mental element necessary to constitute his action an assault, ie that he had intentionally or recklessly applied force to the person of another. The jury should further be directed that they ought not to convict the accused merely because he had intentionally or recklessly used force which they considered to have been excessive but that they could convict only if they were satisfied that the degree of force used was plainly more than was called for by the circumstances as the accused believed them to be and, provided he believed that the circumstances called for the degree of force used, he should not be convicted even if his belief was unreasonable. The judge’s directions to the jury that they could convict the appellant if they were satisfied that he had used more force than they considered necessary in the circumstances and that that was the cause of the deceased falling down the steps were inadequate to support a verdict of guilty to manslaughter. The question whether the appellant’s action amounted to an assault and was unlawful and the question whether it was dangerous should have been considered separately. By reason of the judge’s misdirection the appellant’s conviction was unsafe and unsatisfactory and accordingly his appeal would be allowed and the conviction quashed (see p 631 d and p 636 d to p 637 c, post).

Dictum of James LJ in R v Venna [1975] 3 All ER 788 at 793 applied.

R v Church [1965] 2 All ER 72, dictum of Lord Parker CJ in R v Creamer [1965] 3 All ER 257 at 262, DPP v Newbury, DPP v Jones [1976] 2 All ER 365, R v Williams [1987] 3 All ER 411 and Beckford v R [1987] 3 All ER 425 considered.

Per curiam. The present law relating to involuntary manslaughter based on the commission of an unlawful act is in urgent need of reform (see p 631 e f, post).

Notes

For killing by an unlawful act, see 11(1) Halsbury’s Laws (4th edn reissue) para 444, and for cases on the subject, see 14(2) Digest (2nd reissue) 62–69, 5571–5624.

Cases referred to in judgment

Beckford v R [1987] 3 All ER 425, [1988] AC 130, [1987] 3 WLR 611, PC.

DPP v Newbury, DPP v Jones [1976] 2 All ER 365, [1977] AC 500, [1976] 2 WLR 918, HL.

R v Buck and Buck (1960) 44 Cr App R 213, Leeds Assizes.

R v Church [1965] 2 All ER 72, [1966] 1 QB 59, [1965] 2 WLR 1220, CCA.

R v Creamer [1965] 3 All ER 257, [1966] 1 QB 72, [1965] 3 WLR 583, CCA.

R v Larkin [1943] 1 All ER 217, [1943] KB 174, CCA.

R v Venna [1975] 3 All ER 788, [1976] QB 421, [1975] 3 WLR 737, CA.

R v Williams [1987] 3 All ER 411, CA.

Appeal against conviction

John Scarlett appealed with the leave of the full court against his conviction on 23 November 1992 in the Crown Court at Leeds before Judge Geoffrey Baker QC and a jury of manslaughter, for which he was sentenced on 23 December 1992 to nine months’ imprisonment. The facts are set out in the judgment of the court.

Page 631 of [1993] 4 All ER 629

R M Harrison QC and Patrick Robertshaw (assigned by the Registrar of Criminal Appeals) for the appellant.

Stephen Williamson QC and Roger M Thomas (instructed by the Crown Prosecution Service, Wakefield) for the Crown.

7 May 1993. The following judgment of the court was delivered.

At the conclusion of the argument the court announced that the conviction would be quashed for reasons to be given later.

BELDAM LJ. The appellant, John Scarlett, appeals against his conviction on 23 November 1992 in the Crown Court at Leeds before Judge Geoffrey Baker QC and a jury of an offence of manslaughter. He was sentenced to nine months’ imprisonment. He appeals against his conviction with the leave of the full court granted on 23 March 1993.

After hearing argument on Thursday, 29 April 1993 we were satisfied that the verdict of the jury was unsafe and unsatisfactory and that the conviction could not be sustained. The evidence relied on by the prosecution was insufficient and the directions given by the learned judge were inadequate to support the verdict of the jury. Accordingly we allowed the appeal and quashed the appellant’s conviction stating that we would give our reasons later. We took this course to ensure the appellant’s immediate release, though regrettably he had already served almost the entire sentence imposed upon him. This unfortunate miscarriage of justice might well have been avoided if the clear advice of the Criminal Law Revision Committee’s 14th Report, Offences Against the Person (Cmnd 7844 (1980)), had been implemented. That distinguished committee recommended abolition of the antiquated relic of involuntary manslaughter based on the commission of an unlawful act and the adoption of the more rational and systematic approach to the offence of manslaughter they proposed. The present law is in urgent need of reform in spite of recent judicial attempts to make the law more compatible with a modern system of criminal justice.

The appellant was charged with unlawfully causing the death of a Mr Larkin. The events which gave rise to the charge were that the appellant, now 40 years of age, was the licensee of the Queen’s Road Tavern public house in Halifax. Ten minutes after closing time on 12 June 1991 the deceased, Mr Larkin, a large, heavily built man, entered the public house the worse for drink and approached the bar. He indicated he wanted to be served and the appellant, who was behind the bar cleaning up, said: ‘You’ve no chance.' The deceased then said to the appellant: ‘What are you talking to me like that for? I haven’t asked you a question yet.' The appellant repeated that there was no chance of his being served. Still the deceased persisted and eventually the appellant said: ‘Look get out now or I’ll put you out.' The deceased replied: ‘You and who else?' The appellant came from behind the bar through the gap in the counter moving towards the deceased, who said: ‘You’re not going to put me out’, indicating to at least one of those present in the bar that he was not going to leave voluntarily.

The appellant went to take hold of the deceased’s right arm to escort him from the bar but with a wide, sweeping movement the deceased threw his right arm round in an arc. The appellant said that he thought that the deceased might

Page 632 of [1993] 4 All ER 629

strike him, though in fact he did not, so he placed himself behind the deceased and put his arms around his body restraining him by pinning both arms to his side. It was a manoeuvre that the appellant had learnt from his service in the army and in his view it had the advantage that neither of them could come to any harm. It prevented a potential assailant from striking any blows. The appellant was of smaller build than the deceased who struggled and resisted as the appellant tried to get him to the door. The only witnesses on whom reliance was placed described the appellant as ‘bundling the deceased towards the door’. On the way to the door the deceased and the appellant bumped into the door by a cigarette machine.

The entrance to the public house is somewhat awkwardly placed. The door into the bar is a swing-door hinged upon the right-hand side when facing it, which opens out across a lobby. The lobby, which is 5 feet by 4 feet, gives onto a flight of five steps leading down to the street. On either side of the steps are substantial handrails. The steps are not particularly steep and there is an outer door separating the lobby from the steps but it is normally held back against the wall until the public house is closed for the night.

Due to the position of the door the appellant had to turn sideways still holding onto the deceased in order to push it open with his body, turning as he did so through an angle of 90 to place the deceased in the lobby. The appellant pushed open the door with his body and moved into the lobby, the door closing behind him. Apart from the appellant’s account, there was no evidence of what then happened in the lobby. According to the appellant, he placed the deceased with his back against the wall and the frame of the outer door. In the lobby against the wall was an advertisement board of a kind frequently seen advertising snacks etc. Having placed the deceased in the lobby, the appellant turned to re-enter the bar and had his right hand on the inner door handle when the deceased called out: ‘Well you haven’t thrown me out yet.’

At that moment the advertisement board came over on top of the appellant’s legs and he saw the deceased fall from the top step. A passer-by also saw the deceased fall from the top step backwards into the street, apparently striking his head. The appellant then went down and spoke to the deceased, who did not move. The appellant re-entered the bar and was heard to say: ‘He’s fallen down the steps.’

The appellant said that he was quite worried and flustered and that he had intended to go to call an ambulance, but he then went back to have another look at the deceased and saw that he was apparently seriously injured, having struck his head. He was unconscious. As he was lying across the pavement, the appellant moved him into a small alleyway at the side of the public house and placed him in the recovery position. He then returned to the public house and telephoned for the ambulance. The ambulance arrived and the deceased was taken to hospital, where it was found that he had sustained a serious injury to his head from which he later died.

Not unnaturally, when asked for his explanation by police, the appellant tended to underplay the manner in which he had found it necessary to bundle the deceased towards the door of the bar, and much was later to be made of the fact that he had not told the police that he had put his arms around the deceased. Nor did he tell them of the aggressive gesture made by the deceased when the appellant went to take hold of his right hand; yet the independent evidence clearly established both these facts. The appellant was told that he would be arrested for murder. The court asked for an explanation how, in the light of the

Page 633 of [1993] 4 All ER 629

evidence, such a course could have been taken. No explanation whatever was given. The appellant understandably was shocked and terrified. He was interviewed on three occasions and again much was made of matters which he had forgotten or omitted to tell the interrogating officers; but in the course of those interviews he consistently denied the use of excessive force on the deceased. On the contrary, it was clear that throughout he was denying any intention to cause harm to the deceased.

The case advanced for the prosecution was that the appellant was guilty of manslaughter because when bundling the deceased towards the door of the bar the appellant had used excessive force and thus had committed an unlawful act. The prosecution disclaimed any suggestion that the appellant had pushed the deceased towards the top of the steps or that he had recklessly placed him in a position from which there was a serious risk of his falling and sustaining injury. The case was based solely on the assertion that by his unlawful act of using excessive force in the bar he had imparted such a momentum to the deceased that the deceased’s fall was a consequence of the unlawful act, and his death consequently manslaughter.

Before coming to the directions given by the learned judge to the jury, it is necessary to quote part of the evidence given by the appellant:

‘The only thing I intended in manoeuvring him as I did was to remove him from the premises. I didn’t cause him any injury; I didn’t want to cause him to fall down the steps; I didn’t cause him to fall down the steps; and I didn’t think he would fall down the steps in the position I had put him in. I thought I had used the minimum amount of force. When I pushed him out of the bar area I may have been holding him more tightly than necessary but even if I was I thought it was reasonable at the time and I didn’t think there was any likelihood that he would fall down the steps. I didn’t think he would get hurt at all.’

The learned judge began his summing up to the jury by telling them that the case boiled down to one fairly short question which they would have to ask themselves:

‘Am I sure that [the appellant] used unnecessary and unreasonable and therefore unlawful force in ejecting Mr Larkin from his public house and did that force—unlawful force—actually cause his fall?’

Later he directed them:

‘Manslaughter means the unlawful causing of his death and this means if the killing is the result of the accused man’s unlawful act, like an assault, which all reasonable people would inevitably realise must subject the victim to some form of harm, even if it is not serious, if the killing takes place in that situation, it is manslaughter.’

He told the jury that ‘unlawful act’ was very important in the case, adding that the appellant was entitled to use reasonable force to eject the deceased. He further directed that:

‘Where reasonable force is the point in the case, you, the members of the jury, are the people who have to decide where the force used, if it was, falls. You are the people who have to decide whether it is reasonable, necessary

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or excessive and you have to measure it—let’s be clear—not by any artificial standard.’

Later he said:

‘… if a person uses what is necessary and reasonable force and no more to get an intruder or an unwelcome visitor out, that is perfectly lawful. If it may, in the circumstances, be perfectly reasonable and necessary, then that is lawful. It is only if you are sure that what was done was not reasonable and necessary force in all the circumstances that you can say that it was unlawful.’

And later still he said:

‘If you conclude that what was done was an unnecessary and unreasonable degree of force, then you have to examine the next stage. Did that act of unlawful and unnecessary force actually cause Mr Larkin to fall down the steps?’

The whole tenor of the judge’s directions was that if the jury concluded that the appellant had used more force than was necessary in the circumstances in the bar, and if they were satisfied that that caused the deceased to fall and strike his head, he was guilty of manslaughter. His exposition that in law manslaughter was made out—

‘if the killing is the result of the accused man’s unlawful act, like an assault, which all reasonable people would inevitably realise must subject the victim to some form of harm, even if it is not serious, if the killing takes place in that situation it is manslaughter’,

was founded on the statement of the law in DPP v Newbury, DPP v Jones [1976] 2 All ER 365, [1977] AC 500. The conduct of the accused in that case was clearly both unlawful and dangerous. In his opinion, with which the other members of the committee agreed, Lord Salmon, after quoting from R v Larkin [1943] 1 All ER 217, [1943] KB 174, said ([1976] 2 All ER 365 at 367, [1977] AC 500 at 507):

‘… that is an admirably clear statement of the law which has been applied may times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous.’

Lord Salmon then quoted from the well-known passage in the judgment of Edmund Davies J in R v Church [1965] 2 All ER 72 at 76, [1966] 1 QB 59 at 70. Speaking of this type of involuntary manslaughter, Edmund Davies J said:

‘… the conclusion of this court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’

Of this principle Lord Salmon said ([1976] 2 All ER 365 at 367, [1977] AC 500 at 507):

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‘The test is still the objective test. In judging whether the act was dangerous, the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger.’

Lord Edmund-Davies was one of the members of the committee. Concurring with the opinion of Lord Salmon, he referred to his judgment in R v Church and added ([1976] 2 All ER 365 at 370, [1977] AC 500 at 510):

‘But, insofar as R v Church has been regarded as laying down that for the proof of manslaughter in such circumstances what is required is no more than the intentional committing of an unlawful act of the designated type or nature, it followed a long line of authorities which the court there cited.’ (Lord Edmund-Davies’s emphasis.)

As in DPP v Newbury, in R v Church the accused’s intentional conduct was plainly unlawful; no question arose whether his actions were or were not unlawful. Counsel for the Crown in R v Church did not even seek to argue that—

‘it is an accurate representation of the present state of the law to direct a jury that any unlawful act causing death is at least manslaughter and that therefore the state of a defendant’s mind is not relevant.’ (See [1966] 1 QB 59 at 65.)

The same point was made in R v Creamer [1965] 3 All ER 257, [1966] 1 QB 72, decided by a different division of this court, four months after the decision in R v Church. In that case Lord Parker CJ said ([1965] 3 All ER 257 at 262, [1966] 1 QB 72 at 82):

‘In the opinion of this court, the conclusion reached by EDMUND DAVIES, J. [in R v Buck and Buck (1960) 44 Cr App R 213], is correct. A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence, such as assault …’

Where one of the issues for the jury is whether the accused is guilty of the unlawful act of assault in circumstances in which he is entitled to use reasonable force either in self-defence or for the purpose of preventing crime, or as here in removing a trespasser, the need for a careful direction was stressed by Lord Lane CJ in R v Williams (1983) [1987] 3 All ER 411 at 413–414 where he said:

‘One starts off with the meaning of the word “assault”. “Assault” in the context of this case, that is to say, using the word as a convenient abbreviation for assault and battery, is an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant. There are circumstances in which force may be applied to another lawfully. Taking a few examples. Firstly, where the victim consents, as in lawful sports, the application of force to another will, generally speaking, not be unlawful. Secondly, where the defendant is acting in self-defence the exercise of any necessary and reasonable force to protect himself from unlawful violence is not unlawful. Thirdly, by virtue of s 3 of the Criminal Law Act 1967, a person may use such force as is reasonable in the circumstances in the prevention of a crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large. In each of those cases the defendant will be guilty if the jury are sure

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that first of all he applied force to the person of another, and secondly that he had the necessary mental element to constitute guilt. The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more.’

The issue in R v Williams was whether the accused was entitled to be acquitted if he mistakenly believed that he was justified in using force. The court held that, even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he was entitled to rely upon it. The reason why he was entitled to be acquitted is because he did not intend to apply unlawful force. The principle we have quoted that the mental element necessary to constitute guilt of an assault is the intent to apply unlawful force to the victim was approved by the Board of the Privy Council in Beckford v R [1987] 3 All ER 425 at 431, [1988] AC 130 at 143.

If the mental element necessary to prove an assault is an intention to apply unlawful force to the victim, and the accused is to be judged according to his mistaken view of the facts whether that mistake was on an objective view reasonable or not, we can see no logical basis for distinguishing between a person who objectively is not justified in using force at all but mistakenly believes he is and another who is in fact justified in using force but mistakenly believes that the circumstances call for a degree of force objectively regarded as unnecessary.

Where, as in the present case, an accused is justified in using some force and can only be guilty of an assault if the force used is excessive, the jury ought to be directed that he cannot be guilty of an assault unless the prosecution prove that he acted with the mental element necessary to constitute his action an assault, that is ‘that the defendant intentionally or recklessly applied force to the person of another’ (see R v Venna [1975] 3 All ER 788 at 793, [1976] 1 QB 421 at 429 per James LJ).

Further they should be directed that the accused is not to be found guilty merely because he intentionally or recklessly used force which they consider to have been excessive. They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable.

In this case the learned judge gave no direction to the jury that the prosecution, to establish an assault, had to prove that the appellant intentionally or recklessly applied excessive force in seeking to evict the deceased. On the contrary the jury were simply left to say what in the circumstances they considered was reasonable force and directed that if they concluded that what was done involved an unnecessary and unreasonable degree of force they then only had to consider whether the act of unlawful and unnecessary force actually caused the deceased to fall down the steps. And again later:

‘So you are left with the situation: how did he meet his death and are you sure that it was the accused’s conduct which directly produced it by his unlawful act?’

We are of the opinion that the directions to the jury in the circumstances of this case were inadequate to support a verdict of guilty of manslaughter. The

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appellant had given clear evidence that he only intended to use sufficient force to remove the deceased from the bar, an act he was lawfully entitled to do. It was not contended, nor were submissions made to the jury on the basis, that he acted recklessly. The direction to the jury was based on the assertion that it was sufficient if they found the force used by the appellant excessive in the circumstances. The learned judge seems to have assumed that this was sufficient to prove that what the appellant did amounted to an assault.

The expression used by the witnesses that the appellant ‘bundled’ the deceased towards the door certainly provided no basis for saying the appellant was reckless, nor by itself did it imply that the force used was excessive in the circumstances. Because of the dire consequences of the deceased’s fall, there was a real risk that the jury might be persuaded not only that the force applied was excessive but that the appellant’s actions were likely to cause injury. It is important to emphasise that the question whether the action of the appellant was unlawful and the question whether it was dangerous have to be considered separately, as the authorities to which we have drawn attention make plain.

We were informed that counsel for the appellant submitted at the close of the case for prosecution that there was no case for the appellant to answer and we are surprised that on the evidence reviewed in the summing up the submission was rejected.

There is a further matter to which we would refer because it demonstrates the difficulty which the jury had in understanding the directions they had been given. The prosecution never suggested that the appellant had committed any unlawful act after passing through the door leading to the lobby. The case presented was based solely on the actions of the appellant within the bar. After the jury had retired to discuss their verdict they sent a note to the learned judge asking him to give a ‘definition of the unlawful act within the porch’. The learned judge directed the jury that they had to be sure that an unlawful act caused the deceased to fall down the steps and that the Crown had to prove that the unlawful force proceeded into the porch and caused the man to fall down the steps. He said:

‘The prosecution cannot point to any evidence to show that there was any new form of force or even a continuation of the old force which went on to cause him to fall down the steps. They are saying it was all one operation. There was the unlawful force which produced a momentum which took him through the porch door and continued to take him off the top step, down; in other words, a continuation of it. No one knows, of course, what happened. They are relying on all the surrounding circumstances and on what happened before they got to the swing-door.’

With some justification Mr Harrison QC for the appellant points out that, had the jury been satisfied that there was an unlawful act within the bar, they could not have been asking for directions about a unlawful act in the porch and he criticises the further direction because it did not clearly point this out to the jury. Further he criticises the last words of the additional direction because, in saying ‘No one knows … what happened. They are relying on all the surrounding circumstances …’, the learned judge was inviting the jury to draw inferences adverse to the evidence of the appellant, who had given an account of what in fact happened, without adding the customary warning to the jury not to draw any such inferences unless they were sure that they were justified in doing so.

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As we have already concluded that the verdict of the jury is unsafe and unsatisfactory, we find it unnecessary to express any view on this additional argument. It seems to us merely indicative of the difficulty the jury had in understanding the concept of manslaughter based on unlawful act in the circumstances of this case. We conclude by expressing the hope that serious consideration will now be given to implementing proposals for a more modern and rational approach to the law of manslaughter.

Appeal allowed. Conviction quashed.

Kate O’Hanlon  Barrister.

R v Preston and others

[1993] 4 All ER 638

Categories:        CRIMINAL; Criminal Evidence, Criminal Procedure        

Court:        HOUSE OF LORDS        

Lord(s):        LORD KEITH OF KINKEL, LORD TEMPLEMAN, LORD JAUNCEY OF TULLICHETTLE, LORD BROWNE-WILKINSON AND LORD MUSTILL        

Hearing Date(s):        21–24, 28–29 JUNE, 4 NOVEMBER 1993        

Criminal evidence – Interception of communications – Telephone intercepts – Telephone intercepts authorised for ‘preventing’ serious crime – Reference to telephone intercepts in criminal trial – Restriction on use of telephone intercepts as evidence in criminal trial – Prosecution admitting that defendants’ telephones had been tapped – Whether prosecution under duty to disclose to defence information obtained by police from telephone intercepts – Whether defence entitled to cross-examine police witnesses about telephone intercepts – Whether prevention of serious crime extending to prosecution of serious crime – Whether prosecution duty to disclose material information to defence applying to information obtained from telephone intercepts – Whether evidence of telephone calls obtained from telephone intercepts should be excluded – Police and Criminal Evidence Act 1984, s 78(1) –Interception of Communications Act 1985, ss 2(2)(b), 6, 9.

Criminal law – Trial – Chambers – Discussion between judge and counsel in judge’s private room – Undesirability of trial matters being discussed by judge and counsel in judge’s private room – Trial ought to be held in presence of defendant unless absolutely necessary.

The five defendants were arrested and charged with conspiracy to import prohibited drugs from Holland after three of the defendants were caught in possession of two holdalls containing £225,680 cash outside a house which one of them had just left. When the house was searched a third holdall containing 10 kg of cannabis was found. The defendants believed that they had been caught as the result of the police tapping their telephones. Under s 2(2)(b)a of the Interception of Communications Act 1985 the Secretary of State was empowered to issue a warrant for a telephone intercept ‘for the purpose of preventing or detecting serious crime’. Under s 6b of the 1985 Act the Secretary of State was required when issuing a warrant to make arrangements to secure

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that disclosure of intercepted material was limited to the minimum necessary for the purpose of preventing or detecting serious crime and that any intercepted material was destroyed as soon as its retention was no longer necessary for the purpose of preventing or detecting serious crime. At the trial the Crown suggested that the alleged conspiracy could be inferred from the large number of telephone calls between the defendants and between the defendants and Holland during the relevant dates. The Crown did not seek to introduce evidence of the contents of the telephone calls. The defence was that although there had been a conspiracy to import the drugs the defendants had not had any part in it, and S, the defendant alleged to be the principal conspirator, also raised the defence of duress, claiming that his girlfriend and son had been held in Holland at the time as hostages by the suppliers of the drugs. When it became apparent during the course of the trial that the defendants’ telephones had been tapped, the defence requested the prosecution to produce evidence of the material obtained from telephone tapping, hoping that the telephone intercepts would establish that S had acted under duress and/or that the importation had in fact been arranged by a police informer and the defendants had nothing to do with it. In a series of private meetings in the judge’s room with counsel, the judge indicated his approach to sentencing if S pleaded guilty and prosecution counsel revealed that he was aware that the defendants’ telephones had been tapped but stated that he did not know or was not prepared to reveal the material derived from the telephone intercepts. When invited by the judge to see whether there was anything in the material arising out of the intercepts which could conceivably be of use to the defence, prosecution counsel, after taking instructions from the Attorney General, the Director of Public Prosecutions and the Home Office, informed the court that in the Attorney General’s opinion it was not his duty, as counsel for the Crown, to acquaint himself with material relating to the intercepts for the purpose of considering whether any of that material need be disclosed, because any evidence relating to or concerned with or arising out of the intercepts would tend to suggest the existence of a warrant for the intercepts issued by or on behalf of the Secretary of State pursuant to s 2(1) of the 1985 Act and would be inadmissible under s 9c of that Act, which provided that no evidence could be adduced and no question asked in cross-examination which tended to suggest that a warrant for an intercept had been issued. The judge then ruled that no evidence could be given about the matter and no questions asked and that the individual defendants should not be informed about the nature of what had taken place in chambers and he refused an application by the defence to exclude the evidence of telephone calls under s 78(1)d of the Police and Criminal Evidence Act 1984 on the grounds that it would be unfair for the prosecution to be allowed to invite the jury to draw inferences from that evidence while refusing to disclose information from the intercepts which might show that the inferences were unfounded. S then pleaded guilty and the other defendants were convicted. All the defendants appealed, contending that the judge’s ruling to admit evidence of the telephone conversations between the defendants without requiring the prosecution to disclose details of the intercepted calls and the holding of part of the trial in camera were material irregularities. The Court of Appeal dismissed the

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appeals against conviction. The defendants appealed to the House of Lords, where the issues arose (a) for what purposes could telephone intercepts properly be made, (b) what retention, use and disposal of materials and information derived from such intercepts was permissible, (c) to what extent the fact of an intercept and the results thereof could be disclosed and put in evidence at a criminal trial, (d) to what extent the prosecution was under a duty to disclose materials derived from an intercept which were or might be favourable to the defendant, (e) whether it was fair to put in evidence the fact that telephone calls had been made without disclosing to the jury either the fact that some were intercepted or were the fruits of the interceptions and (f) to what extent the general principle that a criminal trial should take place in the presence of the defendant applied to evidence relating to telephone intercepts.

Held – (1) The test for whether unused material should be disclosed by the prosecution to the defence in a criminal trial was materiality, not admissibility. Accordingly, the prosecution was under a duty to disclose to the defence material information even if it would be inadmissible if put in evidence by the defence. Furthermore, material ought not to be withheld from prosecuting counsel on the grounds that it would be inadmissible, because counsel for the prosecution’s role as arbiter between the adversarial interests of the prosecution and the broader dictates of justice could not be effectively performed unless he knew everything material that there was to know. Accordingly, the Attorney General’s advice that, since nothing which might be disclosed to prosecuting counsel and through him to the defendants could in the light of s 9 of the 1985 Act be put in evidence before the jury, counsel for the prosecution ought not to acquaint himself with material relating to the intercept for the purpose of considering whether any of that material need be disclosed was wrong (see p 642 j, p 644 j to p 645 a, p 647 e, p 664 j to p 665 b and p 672 h, post); R v Ward [1993] 2 All ER 577 applied.

(2) The ‘preventing’ of serious crime for the purposes of s 2(2)(b) of the 1985 Act did not extend to the prosecution of serious crime and therefore the prosecution duty to retain and if necessary disclose to the defence all relevant material did not apply to information obtained from a telephone intercept authorised under s 2 of the 1985 Act for the purpose of ‘preventing’ serious crime. The purpose of that Act was that information obtained by telephone intercepts should not be used as evidence and, in particular, the purpose of s 2(2)(b) was to prevent evidence being elicited in a criminal trial which suggested that a telephone intercept had been made. That was reinforced by s 6, which provided for the minimum possible disclosure of material obtained from telephone intercepts and the destruction of that material as soon as its retention was no longer necessary for the prevention of serious crime, and by s 9, which protected information as to the manner in which telephone intercepts were carried out. In that respect the non-disclosure of the existence of telephone intercepts and the material contained or derived from them was an exception to the rule that the prosecution were under a general duty to disclose all unused material to the defence and the destruction required by the 1985 Act of material obtained from a telephone intercept before the trial was not a material irregularity, since Parliament could not have intended that an accused should be able to rely on the absence of that material in order to secure an acquittal (see p 642 j, p 644 j to p 645 a, p 646 g to j, p 647 e, p 666 j to p 667 b, p 669 c and p 672 h, post).

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(3) It was not open to the defendants to argue under s 78(1) of the 1984 Act that evidence of the number of telephone conversations between the defendants should not have been admitted without requiring the prosecution to disclose details of the intercepted calls, since under s 9 of the 1985 Act there should have been no reference made to the intercepted calls at all at the trial and if prosecution counsel had not mistakenly disclosed the fact the defendants could not have raised the issue of fairness (see p 642 j, p 644 j to p 645 a, p 647 e, p 669 j, p 670 g and p 672 h, post).

(4) The judge had been wrong to conduct so much of the trial in camera and to prevent counsel telling their own clients what was going on in the judge’s room, but although that amounted to a serious irregularity which had caused the defendants real hardship it had not affected the outcome of the trial and there had been no miscarriage of justice. The appeals would therefore be dismissed (see p 642 j, p 647 e, p 671 d to f and p 671 j to p 672 a h, post).

Per curiam. (1) Discussions between the judge and counsel in the judge’s private room in private are objectionable in principle and in practice since it is of the essence of an adversarial process that the defendant, as one of the opposing parties, should hear what his opponent has to say and how he says it, so that he can properly frame his response. It is indisputable that the trial should be held in the presence of the defendant unless absolutely necessary (see p 642 j, p 644 j to p 645 a, p 647 e and p 655 c d g, post); dicta of Russell LJ in R v Smith (Terence) [1990] 1 All ER 634 at 636 and of Lord Lane CJ in R v Pitman [1991] 1 All ER 468 at 470 approved.

(2) Although under the 1985 Act there is no way in which the defence can compel disclosure of intercepts, there is nothing in that Act which prevents the prosecution from making disclosure if it chooses to do so. Section 9 does not operate to render inadmissible in evidence the contents of intercepts and if the parties by agreement or admission choose to put the material before the court they are not prevented by s 9 from doing so (see p 642 j, p 644 j to p 645 a, p 647 e and p 672 e, post).

Quaere. Whether an appellant can complain of a material irregularity if he has pleaded guilty (see p 672 f, post).

Notes

For the interception of communications, see 11(1) Halsbury’s Laws (4th edn) paras 270–275.

For the Police and Criminal Evidence Act 1984, s 78, see 17 Halsbury’s Statutes (4th edn) (1993 reissue) 228.

For the Interception of Communications Act 1985, ss 2, 6, 9, see 45 Halsbury’s Statutes (4th edn) 418, 422, 426.

Cases referred to in opinions

Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408, [1984] 1 WLR 892, CA.

Malone v Comr of Police of the Metropolis (No 2) [1979] 2 All ER 620, [1979] Ch 344, [1979] 2 WLR 700.

Malone v UK (1984) 7 EHRR 14, E Ct HR.

Marks v Beyfus (1890) 25 QBD 494, CA.

R v Agar [1990] 2 All ER 442, CA.

R v Aramah (1982) 76 Cr App R 190, CA.

R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613, CA.

R v Effik (1992) 95 Cr App R 427, CA.

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R v Harper-Taylor and Bakker (1988) 138 NLJ 80, CA.

R v Hennessey (Timothy) (1978) 68 Cr App R 419, CA.

R v King (25 November 1992, unreported), CA.

R v Pitman [1991] 1 All ER 468, CA.

R v Slowcombe [1991] Crim LR 198, CA.

R v Smith (Terence) [1990] 1 All ER 634, [1990] 1 WLR 1311, CA.

R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619, CA.

Conjoined Appeals

Stephen Preston, Zena Preston, Nicholas Clarke, Anthony Austen and Jeremy Salter appealed, with the leave of the Appeal Committee of the House of Lords given on 17 November 1992 in respect of the appellants Stephen and Zena Preston, Clarke and Austen and on 10 March 1993 in respect of the appellant Salter, against the decision of the Court of Appeal, Criminal Division (Woolf LJ, Scott Baker and Hidden JJ) (95 Cr App R 355) delivered on 6 May 1992 dismissing  their appeals against their conviction in the Crown Court at Portsmouth before Judge Griffiths and a jury of conspiring to evade the prohibition on the importation of cannabis resin in contravention of  s 3(1) of the Misuse of Drugs Act 1971 and s 170(2)(b) of the Customs and Excise Management Act 1979, contrary to s 1(1) of the Criminal Law Act 1977. By order of the House of Lords dated 20 May 1993 the appeals were conjoined. The Court of Appeal had refused leave to appeal but certified that questions of law of general public importance were involved in the decision. The facts are set out in the opinion of Lord Mustill.

Sydney Kentridge QC (who did not appear at the trial) and Simon Stafford Michael (instructed by Offenbach & Co) for Stephen Preston.

Geoffrey Robertson QC (who did not appear below) and Roderick Price (instructed by Offenbach & Co) for Zena Preston.

Sir Ivan Lawrence QC (who did not appear below) and Lionel Lassman (instructed by Ralph Haeems & Co) for Clarke.

John Perry QC (who did not appear below) and Brendan Keany (instructed by Joy Merriam & Co) for Austen.

Andrew Collins QC (who did not appear below) and Michel GA Massih (instructed by Lizzimore Braithwaites) for Salter.

Alan Moses QC (who did not appear below), John Aspinall and Philip Havers (who did not appear at the trial) (instructed by the Crown Prosecution Service, Headquarters) for the Crown.

4 November 1993. The following opinions were delivered.

Their Lordships took time for consideration.

LORD KEITH OF KINKEL. My Lords,  for the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would dismiss these appeals.

LORD TEMPLEMAN. My Lords, by s 2(1) of the Interception of Communications Act 1985:

‘… the Secretary of State may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by

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post or by means of a public telecommunication system, such communications as are described in the warrant; and such a warrant may also require the person to whom it is  addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant.’

By s 10(1) ‘intercepted material’ in relation to a warrant means the communications intercepted in obedience to that warrant.

By s 2(2) the Secretary of State shall not issue a warrant unless he considers that the warrant is necessary inter alia ‘for the purpose of preventing or detecting serious crime’. By s 6, where the Secretary of State issues a warrant he must make arrangements to secure that disclosure of intercepted material is limited to the minimum necessary for the purpose of preventing or detecting serious crime and must secure that each copy of any intercepted material is destroyed as soon as its retention is no longer necessary for the purpose of preventing or detecting serious crime.

The arrangements made by the Secretary of State to comply with s 6 when he issues a warrant for a telephone to be tapped have been outlined and approved by the commissioner appointed under s 8 of the Act to keep under review the carrying out by the Secretary of State of his functions and duties. When a warrant is issued to an official of the telecommunications service for a telephone to be tapped in order to prevent or detect serious crime, the official prepares a tape and transcript, the police officer in charge of the relevant investigation takes note of any information which he deems to be helpful and the tape and transcript are then destroyed, usually within 24 hours. Thus if a suspected drug smuggler arranges by telephone to meet a friend at London Airport the police are in a position to make use of that information but no records of the telephone conversation are allowed to be kept.

By s 9 of the Act in any court proceedings no evidence shall be adduced and no questions asked in cross-examination which tend to suggest that a warrant has been issued.

Thus the Act makes it impossible for a record of a telephone conversation to be given in evidence and makes it impossible for evidence to be given that a warrant was issued for a telephone conversation to be intercepted.

On 30 July 1989 the defendant Stephen Preston travelled from Amsterdam to his house in Waterfall Road in London. He came, on his own admission, to find out what had happened to part of a consignment of drugs illegally imported from Holland to England and then hijacked, and to see that the suppliers in Amsterdam received the price which they had stipulated for the whole consignment. On 3 August 1989 Stephen Preston emerged from his Waterfall Road house carrying two holdalls and entered a car which held the defendants Clarke and Salter. The occupants of the car were arrested and the holdalls were found to contain £225,680 in cash. A third holdall at the Waterfall Road house held 10 kg of cannabis. The papers found in the car and at the house implicated the defendants, all of whom were charged with conspiracy to import drugs. The defendants Clarke and Austen made damaging admissions. Stephen Preston admitted that he was taking part in a conspiracy to distribute drugs but alleged that he was acting under duress exercised in Amsterdam by the aggrieved suppliers who held his girlfriend and his son as hostages. Each of the other defendants pleaded ignorance of anything to do with drugs. The trial of the defendants began on 1 November 1990. The defendants believed, correctly,

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that the success of the police in arresting the defendants and catching them red-handed was due partly to information received from an informer and partly from information received as a result of telephone tapping which had been authorised  by the Secretary of State. The police were unwilling to disclose information about the informer and were debarred by the 1985 Act from giving any information about the content of the telephone intercepts. The defence concentrated on complaining to the judge that their clients could not have a fair trial unless they could identify the informer and be supplied with details of all the telephone conversations which had taken place.

On Tuesday, 27 November 1990 counsel for Stephen Preston, saying that he had ‘never been a shrinking violet so far as disclosing my defence is concerned’, condescended to outline the instructions which Preston had given to his solicitors to explain why the suppliers of the drugs had fixed upon him, innocent though he claimed to be, as the right person to go to England and complete the distribution of the drugs and recovery of the moneys. On the same day, namely 27 November 1990 when Stephen Preston’s instructions to his solicitors were revealed to the judge and the prosecuting authorities for the first time, prosecuting counsel confirmed that pursuant to the statutory provisions regarding telephone tapping and following the procedure which had been approved by the commissioner, all the tapes and transcripts of telephone conversations had been destroyed immediately after the police had gathered the information which enabled them to arrest the defendants. Prosecuting counsel also informed the judge and defending counsel that representatives of the police who had used the information derived from telephone tapping knew of nothing which would support a defence of duress or a defence of innocence. Stephen Preston changed his plea to guilty on 6 December 1990.

The defendants having been caught red-handed in the circumstances I have outlined, and there being ample evidence to make the defence of ignorance unbelievable, all the other defendants were duly convicted. Counsel for the defendants pursued their complaints that there could not be a fair trial of their clients because they had not been given the name of the informer and had not been supplied with details of the telephone conversations which had been intercepted. These complaints were rejected by the trial judge and by the Court of Appeal ((1992) 95 Cr App R 355) and the defendants now appeal to this House against conviction. The defendants also put forward a further complaint. The arguments about the informer and the telephone tapping had taken place in the judge’s room in the absence of the defendants. Counsel were forbidden to tell their clients about the arguments exchanged and the information confided in the course of discussions in the judge’s room. The trial did not conclude until 15 February 1991.

Defence counsel now complain that argument should not have taken place in the absence of the defendants and certainly should not have been concealed from the defendants. My noble and learned friend Lord Mustill will deal with the principles which apply to the undesirable practice of secret exchanges between judge and counsel. In the present case the procedure had no effect on the outcome.

For my part I consider that the arguments put forward on behalf of the defendants are quite untenable. The 1985 Act requires the destruction of material which might otherwise be probative of the guilt or innocence of the accused. Parliament cannot have intended that an accused should be able to rely on the absence of that material in order to secure an acquittal. The trial

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must proceed as if the intercepted telephone conversations had never been recorded. I would dismiss these appeals.

LORD JAUNCEY OF TULLICHETTLE. My Lords, s 2(2)(b) of the Interception of Communications Act 1985 empowers the Secretary of State to issue a warrant authorising telephone-tapping ‘for the purpose of preventing or detecting serious crime’. The principal issue in these appeals is whether these words also cover the prosecuting of such crime. The defendants contend that they do with the consequence that the defence is entitled to have access to intercepted material. This contention is opposed by the prosecutor.

It is common ground that the 1985 Act was passed as a result of the decision of the European Court of Human Rights in Malone v UK (1984) 7 EHRR 14. That case decided that there had been a violation of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) inasmuch as the law of England and Wales did ‘not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities’. The mischief which the Act was intended to deal with was accordingly the lack of a clear statutory framework within which telephone-tapping could take place and the lack of any form of redress for someone claiming that his telephone had been wrongly tapped.

Prior to the passing of the Act the invariable practice was that material intercepted as a result of telephone-tapping was not used in evidence. This is made clear in the Birkett Report, Interception of Communication (Cmnd 283 (1957)), the White Paper Interception of Communications in Great Britain (Cmnd 7873 (1980)), the Diplock Report, Interception of Communications in Great Britain (Cmnd 8191 (1981)), and the White Paper Interception of Communications in the United Kingdom (Cmnd 9438 (1985)). Did the Act alter this practice even although the decision in Malone did not require such alteration?

If s 2(2)(b) stood alone it could be argued that ‘prevention’ broadly construed could comprehend prosecution. After all, it might be said, what better way of preventing crime than by successfully prosecuting those who are found out? However, s 2(2)(b) does not stand alone but must be construed in the context of the Act as a whole and in particular ss 6 and 9 thereof. Section 6(1) provides that where the Secretary of State issues a warrant, he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing—

‘(a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and (b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.’

Section 6(2) is in the following terms:

‘(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely—(a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed; (c) the extent to which the material is copied; and (d) the number of copies made of any of the material,is limited to the minimum that is necessary as mentioned in section 2(2) above.’

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Pausing there, it is obvious that this subsection envisages the minimum possible circulation of intercepted material and presupposes that at the time the warrant is issued the Secretary of State will be in a position to determine not only to whom the intercepted  material is to be disclosed but how much of that material is to be copied and also the number of copies to be made. This is something which it would be impossible for him to do if, before or after the intercept was made, it was decided that some or all of the material was to be used in evidence. At the time when the warrant was issued the Secretary of State might very well have no idea of the number of persons who might be prosecuted as a result of the intercepted material nor of the extent of their representation by solicitors and counsel. Section 6(2) therefore points strongly away from any contemplated evidential use of intercepted material. This pointer is further reinforced by the terms of s 6(3):

‘The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2(2) above.’

Once again, while the Secretary of State could no doubt provide for destruction of copies which remained in the hands of those persons over whom he had a degree of control, he could not so provide in relation to copies in the hands of third parties such as counsel and solicitors acting for defendants or in relation to those which had become court exhibits.

Section 9(1) is in the following terms:

‘In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked which (in either case) tends to suggest—(a) that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below; or (b) that a warrant has been or is to be issued to any of those persons.’

It was argued by the defendants that this subsection merely prevented the asking of questions as to whether or not an intercept had taken place but did not prevent the material derived from such intercept being introduced in evidence in some other way, such as by admission. However, the clear purpose of the subsection is to prevent evidence being elicited which suggests that an intercept has been made and this would be a pointless exercise if, nevertheless, the content of that intercept was to be disclosed. Indeed it is very difficult to see how such content could be used in evidence without disclosure of the circumstances in which it became available.

My Lords, I have no doubt that Parliament intended that the existing practice of not using intercepted material as evidence should continue. Thus s 6 provides that there should be the minimum disclosure and retention of intercepted material and s 9 prevents the asking of questions suggesting that a warrant to intercept material has been or is to be issued. The combined effect of the two subsections is that neither the existence of a telephone intercept under warrant nor the result thereof are to be disclosed in evidence. Against this background it becomes clear that ‘prevention’ in s 2(2) does not include prosecution. In this connection it is of  significance that Sch 2 to the Act, which enacts a substitution for s 45 of the Telecommunications Act 1984, provides in the substituted sub-s (2) thereof:

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‘Subsection (1) above does not apply to—(a) any disclosure which is made for the prevention or detection of crime or for the purposes of any criminal proceedings ...’

These words replace the words ‘do not apply to any disclosure in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings’. The latter words related only to an offence which had taken place and were inapplicable to ab ante prevention, such as forestalling possible terrorist activities. The two Acts are closely connected and having introduced ‘prevention’ into the new s 45 it would have been logical to include the reference to criminal proceedings in s 2(2)(b) had it been intended to cover such purposes. The fact that no mention of criminal proceedings occurs in s 2(2)(b) further points to the fact that Parliament had no intention to alter the existing practice.

The defendants argued strenuously that failure to disclose intercepted material could result in prejudice to defendants. In my view, any prejudice which might result to the defence must be far outweighed by the inability of the prosecution to make use of incriminating material gleaned from an intercept. It is likely that in the great majority of cases in which a prosecution follows telephone-tapping the material of the intercept will incriminate rather than exculpate one or other of the parties to the intercepted conversation and would be of assistance to the prosecution if it were available in evidence.

My Lords, I am in entire agreement with the far more detailed reasons given by my noble and learned friend, Lord Mustill in his speech for dismissing these appeals. I, too, would dismiss them.

LORD BROWNE-WILKINSON. My Lords, for the reasons given by my noble and learned friend Lord Mustill I, too, would dismiss these appeals.

LORD MUSTILL. My Lords, for many years the interests of national security have required the interception by public authorities of messages passing through public systems of communication. Thus, although the principle that the mail is inviolable has always been accorded great importance the Executive has habitually encroached upon it, in the special interest of protecting the revenues drawn from customs and excise duties, and more generally of preserving national security and forestalling serious crime. Latterly, rapid improvements in technology have enlarged both the volume and the methods of communication, and have at the same time prompted the development of new means of exercising surveillance over messages passed by these new means. Thus, the harm done by the telephonic transmission of subversive or criminal messages by telephone is countered by new methods of interception: telephone-tapping as it is often called. This is the subject of the present appeal, which stems from a long and difficult trial in the Crown Court at Portsmouth.

At the conclusion of this trial Stephen Preston, Zena Preston, Nicholas Clarke, Anthony Austen, Jeremy Salter and Marie Denton were convicted on the first count of an indictment alleging a conspiracy unlawfully to evade the prohibition in force in respect of the importation of a class B controlled drug. They were thereupon sentenced to terms of imprisonment. There were also convictions on other counts not presently material. Except for Marie Denton, whose sentence of imprisonment was suspended, all the defendants appealed against both conviction and sentence. The appeals against sentence achieved some limited success in the Court of Appeal (Woolf LJ, Scott Baker and Hidden JJ) ((1992) 95 Cr App R 355), but all the appeals against conviction were

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dismissed. These defendants now appeal to the House on five certified questions of law. In the event, the debate has without objection extended well beyond the scope of the questions, so I will not set them out. Nor at this stage will I attempt to explain the issues in any detail. In the end they are all quite short, but they must be set in the context, both of the events which led to the prosecution of the defendants, and of the unusual course of the trial. It is sufficient for the moment to say that the ground to be traversed concerns (a) the purposes for which telephone intercepts may properly be made, (b) the permissible retention, use and disposal of materials and information derived from such intercepts, (c) the extent to which the fact of an intercept and the results thereof may be disclosed and put in evidence at a criminal trial, (d) the duty of the prosecutor to disclose materials derived from an intercept which are or may be favourable to the defendant, (e) the fairness of putting in evidence the fact that telephone calls were made without disclosing to the jury either the fact that some were intercepted or were the fruits of the interceptions, (f) the relationship of these questions to the general principle that a criminal trial should take place in the presence of the defendants.

I. THE LAW AND THE PRACTICE

(1) Tensions

Before stating in any detail the laws and practices which form the background to the appeal it may be useful to point out some of the tensions which make up its foreground. In the first place there is the tension within the organs of state, between those which look for the maximum use of intercepts for the common good, to forestall treason, spying and crime, and those whose functions and culture incline towards protection of the individual, and specifically to the protection of the individual’s right of privacy.

Secondly there are the tensions, again within the organs of state, conspicuous where an intercept has yielded information which, directly or indirectly, has led to a prosecution. Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer. Recognition that it exists is however essential to an understanding of what happened during and after the trial. At the opposite pole stand the prosecuting authorities and in particular prosecuting counsel. The latter has two functions which are inhibited by the secrecy of the interception process. The first is obvious. If the intercept yields material tending to show that the arrested person is guilty, the prosecutor will naturally want to make use of it. The second function is less obvious, but just as important, namely that he must conduct the prosecution of offenders in an open manner, disclosing all material which may assist the defendant. The conflict between these orthodox functions of prosecuting counsel and the special duties of secrecy imposed by the law and practice on covert surveillance was revealed by the difficulties suffered by counsel then appearing for the Crown (Mr Aspinall) in his conduct of the prosecution at the trial and by Mr Moses QC on the argument for the  prosecutor in this House. Mr Aspinall was forced to hasten between those from whom he would naturally draw his instructions, namely the Crown Prosecution Service and the senior police officer in the case, and the Home Office and the Attorney General, whose right to intervene in a pending trial was

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by no means obvious, and whose intervention caused prosecuting counsel to adopt a stance which, in at least one respect, was demonstrably unsound. Mr Aspinall plainly did his best, and if at times he became confused in his function, and thereby confused the judge and other counsel, with a consequent waste of time and effort, I can only suggest to your Lordships that he is entitled to every sympathy. So also on the argument of the appeal. It was evident that counsel for the prosecutor, whose function was to represent the Crown as prosecuting authority by advancing all proper reasons why the convictions should be upheld, was distracted by the need to obtain and present the views of other organs of state, whose interests are antithetical to those of a prosecutor. This antithesis was strikingly illustrated by the muddle which led to the Crown successfully advancing before the Court of Appeal in R v Effik (1992) 95 Cr App R 427 a proposition precisely the opposite of the one which it pressed upon your Lordships’ House in the present case.

Recent developments on the law and practice regarding disclosure by the prosecution of ‘unused materials’ have also created tensions within the criminal process. Traditionally this process has been adversarial, with the prosecutor on one side, the defendant on the other, and the judge and jury in the middle. The heavy responsibilities now placed on prosecuting counsel have blurred the edges, not only because he is required to perform tasks which may benefit his opponent (although of course they are designed to benefit the administration of justice) but also because when he decides what ought to be disclosed his acts are administrative and also in a sense judicial in character. This diffusion of function is multiplied in cases such as the present where counsel is required to hold the ring, not only between the state as prosecutor and the defendant, but also between the state as prosecutor and the state as the operator of a secret process to which disclosure is inimical.

Finally, the understandable desire of those who practise surveillance to maintain secrecy at all costs collides with the first principle of criminal practice that proceedings should take place in public and in the presence of the defendant.

Taken together these factors account, at least in part, for the complexity and, it must be said, the degree of confusion into which the proceedings have fallen. Before describing how this happened I must establish a background of law and practice. The starting point must clearly be the specialist area of tele-communications intercepts.

(2) The former practice

The history and rationalisation of the power assumed by the Executive to intercept private communications in the mail, and later by telegraph and telephone, are discussed in a series of published reports, notably those of a committee of Privy Councillors, Interception of Communications (Cmnd 283 (1957)) (the Birkett report), a Home Office White Paper The Interception of Communications in Great Britain (Cmnd 7873 (1980)) and the Diplock Report, Interception of Communications in Great Britain (Cmnd 8191 (1981)). Each of these documents treats as established beyond doubt both the practical justification and the legality of interception. Equally, they all recognise the conflict between the need for the state to pry into the private dealings of the individual and the right of the individual to keep them private,  and acknowledge the importance that this intrusion should be kept to an absolute minimum, and that the fruits of the interception should be retained only for so long as is necessary to achieve the purpose for which the interception was authorised. The reports, and others,

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also make clear that although there has been some disagreement about whether the intercept material is in principle capable of being used in court (contrast the majority and minority opinions in the report of the Privy Councillors) all were agreed that in practice such material is never so employed.

This consensus was for a time put in doubt by the attempt of the plaintiff in Malone v Comr of Police of the Metropolis (No 2) [1979] 2 All ER 620, [1979] Ch 344 to establish that interception was unlawful. In an elaborate judgment Megarry V-C dismissed the claim. The decision has been overtaken by events and it is sufficient for present purposes to record that the Vice-Chancellor described telephone-tapping as a subject which cried out for legislation. At first this proposal fell on stony ground. Reinforcement was however provided by the recommendations of the Royal Commission on Criminal Procedure Report (Cmnd 8092 (1981) esp at paras 3.56–3.60), and by the decision of the European Court of Human Rights in Malone v UK (1984) 7 EHRR 14. The court found against the United Kingdom in the latter case not because interception in proper circumstances and under proper safeguards was in itself objectionable, but because the law of England did not indicate with reasonable clarity the scope and manner of exercise conferred upon the public authorities, so that the minimum degree of legal protection to which citizens were entitled under the rule of law in a democratic society was lacking (see 7 EHRR 14 at 44 (para 79)).

These developments led the government to conclude that legislation was necessary. By way of preliminary there were published what the Home Secretary described in a parliamentary written answer on 19 December 1984 as ‘revised and tightened guidelines’ on the use of equipment in police surveillance operations (see 70 HC Official Report (6th series) written answers cols 157–158). In general these were to the same effect as what had gone before, but it is surprising to find (in para 10) the assertion that ‘It is accepted that there may be circumstances in which material obtained through the use of equipment by the police for surveillance as a necessary part of a criminal investigation could appropriately be used in evidence at subsequent court proceedings’. This departure from previous practice was itself contradicted a few weeks later by a Home Office White Paper Interception of Communications in the United Kingdom (Cmnd 9438 (1985)), designed to lay the ground for the forthcoming Bill. Only two passages are directly material:

‘7. The Government’s aim in introducing legislation is to provide a clear statutory framework within which the interception of communications on public systems will be authorised and controlled in a manner commanding public confidence. It is not seeking through the introduction of this legislation to broaden the scope existing practices ...

12. The legislation which the Government will bring forward will provide a comprehensive framework for interception. It will place interception on a clear statutory basis and will reinforce existing arrangements for control over authorised interception which have been operated by successive Governments. Its main features will be as follows ... (f) The Bill will provide for controls over the use of intercepted material. By making such  material generally inadmissible in legal proceedings it will ensure that interception can be used only as an aspect of investigation, not of prosecution.’

We thus see the mischief against which the 1985 Act was aimed: to clarify and place on a sound statutory footing a system of interception whose existing tight constraints were not to be weakened.

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(3) The 1985 Act

This short but difficult statute fulfils several different functions. First, subject to certain specified exceptions, it prohibits the intentional interception of messages sent by post or through a public telecommunications system. There are two sanctions. The first is a fine or sentence of imprisonment imposed in proceedings brought by or with the consent of the Director of Public Prosecutions. The second sanction is invoked by an aggrieved individual, not by the state. Any person who believes that communications sent to or by him have been intercepted may apply under s 7 to a tribunal constituted in the manner set out in Sch 1. The tribunal investigates whether there has been a contravention of ss 2 to 5, which relate to warrants and certificates. If a contravention is found the tribunal reports accordingly to the Prime Minster and to the complainant, and may order the quashing of the warrant or certificate, the destruction of copies of the intercepted material, and the payment of compensation.

To these general prohibitions s 1(2) creates exceptions in the case of (a) an interception made in obedience to a warrant issued by the Secretary of State and (b) an interception made by someone who has reasonable grounds for believing that the person to or by whom, the communication is sent has consented to the interception. Subsection (3) creates further exceptions, not here material.

Sections 2 to 5 of the Act set up the system of warrants and certificates. The following provisions are most directly relevant:

‘2.—(1) Subject to the provisions of this section and section 3 below, the Secretary of State may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by post or by means of a public telecommunication system, such communications as are described in the warrant; and such a warrant as may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant.

(2) The Secretary of State shall not issue a warrant under this section unless he considers that the warrant is necessary—(a) in the interest of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom ...

3.—(1) Subject to subsection (2) below, the interception required by a warrant shall be the interception of—(a) such communications as are sent to or from one or more addresses specified in the warrant, being an address or addresses likely to be used for the transmission of communications to or from—(i) one particular person specified or described in the warrant; or (ii) one particular set of premises so specified or described; and (b) such other communications (if any) as it is necessary to intercept in order to intercept communications  falling within paragraph (a) above ...

4.—(1) A warrant shall not be issued except—(a) under the hand of the Secretary of State; or (b) in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed thereon, under the hand of an official of his department of or above the rank of Assistant Under Secretary of State.

(2) A warrant shall, unless renewed under subsection (3) below, cease to have effect at the end of the relevant period ...

(6) In this section “the relevant period”—(a) in relation to a warrant which has not been renewed, means—(i) if the warrant was issued under subsection (1)(a) above, the period of two months beginning with the day

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on which it was issued; and (ii) if the warrant was issued under subsection (1)(b) above, the period ending with the second working day following that day ...’

A definition of serious crime is found in s 10(3).

Sections 4(3), (4) and (5) and 5 provide for the renewal, modification and cancellation of warrants and certificates.

The Act then turns in s 6 to the retention, circulation and destruction of the products of a lawful interception:

‘(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing ... (b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.

(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely—(a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed; (c) the extent to which the material is copied; and (d) the number of copies made of any of the material, is limited to the minimum that is necessary as mentioned in section 2(2) above.

(3) The requirements of this subsection are satisfied in  relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2(2) above.’

It will be noted that s 6 creates no criminal or other sanction if the ‘arrangements’ made by the Secretary of State are inadequate, or are deliberately or accidentally contravened. Nor apparently is there any extra-judicial redress since the jurisdiction of the tribunal extends only to breaches of ss 2 to 5. (I  speak here only of the products of authorised tapping, since this is the subject of the present appeal. Quite different considerations may well apply to unauthorised tapping: see Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408, [1984] 1 WLR 892.) The criminal law is not however silent on the matter since a series of statutes, beginning with the Telegraph Act 1868, have made it an offence for a person having official duties connected with the post office to disclose contrary to his duty the contents of telegraphic (later also telephonic) messages. The successive separation of public telecommunications from the postal service and the transfer of the former to the public domain, which the consequent change in status of telecommunication workers, called for a new provision, and this  was embodied in s 45 of the Telecommunications Act 1984. The effect was to render criminal three types of conduct on the part of a person ‘engaged in the running of a public telecommunication system’: (1) the interception of a message sent by that system, unless done in obedience to a warrant of the Secretary of State; (2) the disclosure to any person of the contents of that message, unless either done in obedience to a warrant or ‘in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings’; and (3) the disclosure of the contents of any statement of account specifying the telecommunications services provided for a person, otherwise than ‘in

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connection with the investigation of any criminal offence or for the purposes of any criminal proceedings’.

When s 2 of the 1985 Act came into effect there was no need to retain the first of these prohibitions. The second and third were replaced (through s 11(1) and Sch 2 to the 1985 Act) by the following materially different provisions:

‘45.—(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally discloses to any person—(a) the contents of any message which has been intercepted in the course of its transmission by means of that system; or (b) any information concerning the use made of telecommunications services provided for any other person by means of that system, shall be guilty of an offence.

(2) Subsection (1) above does not apply to—(a) any disclosure which is made for the prevention or detection of crime or for the purposes of any criminal proceedings; (b) any disclosure of matter falling within paragraph (a) of that subsection which is made in obedience to a warrant issued by the Secretary of State under section 2 of the Interception of Communications Act 1985 or in pursuance of a requirement imposed by the Commissioner under section 8(3) of that Act; or (c) any disclosure of matter falling within paragraph (b) of that subsection which is made in the interests of national security or in pursuance of the order of a court.’

This new s 45 is not directly in issue, and I quote it only because of the light which it sheds on the crucial words of s 2. I should add that evidence of the use made of certain telephone apparatus played an important part in the trial. Whether this was pursuant to an order of the court under s 45(2)(b), I do not know, but no point is made about it.

Returning to the body of the 1985 Act, we find in s 8 an additional safeguard, in the shape of a commissioner, in whom is vested a general power of review linked to the performance, not only of ss 2 to 5, but also of s 6. The annual reports of the commissioner show that he has paid close regard to the retention, disclosure and disposal of intercept materials, as well as to the initiation of intercept proceedings.

There remains one important provision, namely s 9, the cause of much perplexity at all stages of these proceedings. For the moment I will simply quote from it:

‘(1) In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked which (in either case) tends to suggest—(a) that an offence under section 1 above has been or is to be committed by  any of the persons mentioned in subsection (2) below; or (b) that a warrant has been or is to be issued to any of those persons.

(2) The persons referred to in subsection (1) above are—(a) any person holding office under the Crown; (b) the Post Office and any person engaged in the business of the Post Office; and (c) any public telecommunications operator and any person engaged in the running of a public telecommunication system.

(3) Subsection (1) above does not apply—(a) in relation to proceedings for a relevant offence or proceedings before the tribunal; or (b) where the evidence is adduced or the question in cross-examination is asked for the

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purpose of establishing the fairness or unfairness of a dismissal on grounds of an offence under section 1 above or of conduct from which such an offence might be inferred; and paragraph (a) of that subsection does not apply where a person has been convicted of the offence under that section …’

(4) Other material principles

The tensions to which I have referred arise through the co-existence of four mutually inconsistent sets of rules. The first is created by the 1985 Act, and I must now describe the other three. I shall do so briefly. There has been no controversy about them on this appeal, though there was much debate about how they should be applied to its particular circumstances, and nothing would be gained by extensive reference to sources which are well known and are fully reported elsewhere. Furthermore the law and practice on each of them is still in the course of evolution, in some instances surrounded by controversy, and it is important not to pre-empt future development by unguarded comment made without benefit of argument. No more is needed than to set the scene for the problems arising at the trial and on the appeals. I begin with the duty of the prosecution to disclose ‘unused materials’.

It has been recognised for many years that the prosecution is obliged to make available to the defence materials not led in evidence by them which may assist the accused. In the earlier cases the duty was narrowly put, but more recent authorities have greatly expanded its scope: a process which had some distance to go when the 1985 Act was passed. The history of the matter, and of the conflicting lines of authority which developed, is given in R v Ward [1993] 2 All ER 577 at 599, [1993] 1 WLR 619 at 643 and need not be repeated here. The trial of the present defendants took place before the decision in R v Ward, and those concerned were directing themselves principally by reference to the Attorney General’s guidelines (see Practice Note [1982] 1 All ER 734). I do not stay to consider the formal status of these guidelines, or the question whether R v Ward has enlarged the duty of disclosure which they prescribe, or whether if so an appellate court should apply the standards prevailing at the date of the trial or those now current (on which see R v Ward [1993] 2 All ER 577 at 599, [1993] 1 WLR 619 at 643). The latter makes no difference here, for it is common ground that whatever test is applied if interception materials had still been in existence at the time of the trial they would have fallen within the scope of the duty, subject to the qualifications imposed by the 1985 Act and the common law principle of public interest immunity. It is also common ground that the principal, although not the only, responsibility for ensuring that the duty is performed rests on prosecuting counsel; and indeed the trial transcripts clearly disclose that counsel for the Crown was fully alive to this responsibility and anxious in very perplexing circumstances to see that it was discharged.

Next, I must refer to the law on the public interest immunity which attaches to ‘sensitive materials’. Here again, there have been important developments in recent years. In the main these do not bear on the appeal, since even if previously the disclosure of telephone intercepts was constrained by a special class of public interest immunity, the position is now governed by the 1985 Act. There is, however, one aspect of the current practice which will be relevant if the Act bears the meaning which the defendants suggest. It was held in R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613, in this respect following R v Ward, that the task of deciding whether materials said to be sensitive should be

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disclosed is for the court, not prosecuting counsel. The Court of Appeal made it clear that argument on this question should in general take place inter partes, and that if for some reason the defendants were excluded from the court their counsel should be free to disclose to their clients what had gone on (see [1993] 2 All ER 643 at  647, [1993] 1 WLR 613 at 617). At the same time, however, it was laid down that where the material was of such a sensitive nature that disclosure of its character or even of the fact that an application was being made for a decision on disclosure of the material would defeat the public interest in its non-disclosure the application could be made ‘ex parte’, in the absence of the defendant and his advisers, and without any notice to them. This new procedure had not of course been announced at the time of the defendants’ trial.

Finally, there is the general question of hearings in private. These are objectionable in principle and in practice. There is no need to quote authority for the proposition that they are objectionable in principle, for it is of the essence of an adversarial process that the accused, as one of the opposing parties, should hear what his opponent has to say and how he says it, so that he can properly frame his response. As to the practical objections these have repeatedly been emphasised by appellate courts. If an advocate sees the judge in private, only later giving his client a summary of what has passed, there is always the risk of misunderstanding, muddle, resentment and injustice. As recently as the early days of the defendants’ trial, two senior judges of unrivalled practical experience were compelled once again  to give warning of the dangers. In R v Smith (Terence) [1990] 1 All ER 634 at 636, [1990] 1 WLR 1311 at 1314 Russell LJ found it ‘disturbing that despite frequent observations made in this court discouraging unnecessary visits to the judge’s room, they appear to continue up and down the country’, whilst in R v Pitman [1991] 1 All ER 468 at 470 Lord Lane CJ exclaimed that ‘no amount of criticism, and no amount of warnings and no amount of exhortation’ seemed to prevent the ‘steady flow of appeals ... arising from visits by counsel to the judge in his private room’. These were cases on ‘plea-bargaining’, but the risks can be as great in other contexts, as witness the quotation in each of these cases of a passage from the judgment in R v Harper-Taylor and Bakker (1988) 138 NLJ 80 which is of general application. The general principle does, it is true, admit of exceptions. Precisely how far they go may be debatable, and R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613 has evidently added another item to the list, but the existence and high importance of the general principle that the trial should be held in the presence of the defendant unless absolutely necessary is indisputable.

Against this background I turn first to the events which founded the

case for the prosecution of the defendants, and then to the trial itself.

II. THE PROSECUTION CASE, THE ISSUES AND THE TRIAL

(1) The prosecution case

The following is a summary of the principal facts relied upon by the prosecution. Its purpose is to demonstrate the importance of the telephone communications, some of which are now acknowledged to have been intercepted, and not to give a balanced account of the whole of the evidence at the trial.

It is convenient to keep in mind that there were four crucial dates: (1) 22 April 1989—the arrest of Michael Denton at Waterloo Station; (2) 28 July 1989—the discovery at Greenwich of a hijacked Astramax van; (3) 30 July 1989—the

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journey by Stephen Preston from Amsterdam to London; and (4) 3 August 1989—the arrest of Stephen Preston, Clarke and Salter outside 18 Waterfall Road, London SW19.

Stephen and Zena Preston were married in 1983. Michael Denton and Marie Denton are her children by a previous marriage. For some years they all lived in Spain, until 1988 when the couple separated. Stephen Preston moved first to Morocco, and then to Amsterdam, where he assumed the identity of a friend named Crabtree. He had two addresses, one of them in Brouwersgracht. At the material time he was living with a young woman called Elaine.

Meanwhile Zena Preston and the Dentons had returned to England, and set up house together at 18 Waterfall Road. In December 1988 Michael Denton ceased to live there and went with friends to live in Amsterdam. For a time a man named Peter Dodmore stayed at Waterfall Road with Marie Denton. Nicholas Clarke lived in Portsmouth. He was an old friend of the Prestons’. Jeremy Salter came to live at Clarke’s home during June 1989. Anthony Austen, who lived in Gravesend, had no prior connection with the other defendants. Mention should also be made of Nicholas Hickmott, a friend or acquaintance of the Prestons. Although Hickmott was not charged with any offence he was briefly taken into police custody and interviewed some weeks after the events in question, and his name featured prominently at the trial.

Although the Prestons had separated they remained in contact—how closely, and for what purpose, was in dispute. There were various monetary transactions between them involving bank accounts and credit cards. These were on comparatively small scale and were said by Zena Preston to involve the proceeds of sale of businesses which the couple had operated in Spain. During February 1989 Zena Preston helped Stephen Preston to procure a passport in the name of Crabtree, using a forged application form and a false address. There was evidence from Peter Dodmore that Stephen Preston telephoned the Waterfall Road house two or three times a week during December 1988 and January 1989. In addition, Zena Preston made at least two visits to Amsterdam to meet Stephen Preston.

These were not the only journeys between the two cities. Marie Denton went to Amsterdam twice, and Clarke and Salter each made at least one visit to Amsterdam. Significantly, although Michael Denton had gone to live in Amsterdam he made at least four visits to London between December 1988 and April 1989. On two of these occasions his ticket was paid for through Zena Preston’s credit card. The last visit resulted in the arrest of Denton outside Waterloo Station on 22 April 1989. He was in possession of a substantial quantity of  cannabis resin, and a considerable sum of money. Before the present trial began he was convicted and sentenced to a term of imprisonment in respect of his dealings with cannabis.

In addition to evidence of personal contact between the defendants, the Crown relied on the frequency of telephone messages passing between apparatus to which the defendants had access. In addition to the telephones installed at Waterfall Road and Brouwersgracht, there were three mobile telephones together with certain other apparatus which I need not mention. The first mobile telephone, which was in the possession of Clarke, was the subject of a contract in the name of Nicholas Wild (the Wild telephone). The second, also in the possession of Clarke, was the subject of a contract in the name of David Lee (the Lee telephone). The third was a telephone in the possession of Hickmott.

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The Crown relied particularly on the volume of calls made on the Wild telephone. To the telephone at the Brouwersgracht address there were calls on every day between 22 and 27 July, rising in frequency from 1 to 11 calls per day and to Hickmott’s mobile telephone a total of 92 calls between 19 and 27 July. On the Lee telephone there were 7 calls to the Brouwersgracht address during June and July 1989.

In addition to the burst of telephonic activity in the days before 28 July, reliance was also placed on the hiring by Clarke and Salter of vehicles during the latter part of July, for short periods during which they incurred substantial mileage. In addition, an Astramax van was hired on 26 July by a person unknown in a false name with the aid of a stolen driver’s licence.

On 28 July the police were called to this Astramax van, which was parked in Rotherhithe. Inside was a man named Andrew Morgan, bound and gagged. The van was otherwise empty. Morgan, who was shaken and slightly injured, was taken to Greenwich hospital. There is little doubt that the van had contained a large quantity of cannabis resin, part of a bulk importation from Holland, and that it had been forcibly taken without payment. There is also little doubt that the suppliers in Holland were acutely unhappy about the disappearance of the drugs and the money which they represented, and wanted steps taken to get them back.

This event was followed by a flurry of activity. On 30 July Stephen Preston travelled from Amsterdam to London under the name Crabtree. He met Marie Denton at Piccadilly, where she gave him credit cards in the name of Preston and Crabtree. She then took him to meet Clarke and Salter at Waterloo station. Later, he went to Waterfall Road. On 1 August Clarke’s car was seen outside Waterfall Road. On that day a message was relayed to Zena Preston’s place of work at Wakefield to the effect that her daughter was ill. Upon receipt she came down to Waterfall Road. In fact Marie Denton was not ill. That evening she went out in Clarke’s car with Stephen Preston, Clarke, Marie Denton and Salter.

The mobile telephone in the name of Wild continued to be much used. On 28 July and the next few days there were totals of 9 calls to the Brouwersgracht address, 27 calls to Waterfall Road and 28 calls to Hickmott’s mobile telephone. One of the latter calls (on 1 August) was made at a time when Clarke, Stephen Preston, Zena Preston and Salter were all in the car together. There were also 24 calls on the Wild telephone to the Lee telephone, and 2 calls to the pager lent to Austen by his brother.

On 3 August 1989 Clarke and Salter were observed to drive up to Waterfall Road in one of the cars hired by Salter. Stephen Preston left the house carrying two holdalls and got into the car which drove away. The police soon after intervened and arrested the three men. The behaviour of the men at the time of the arrest strongly suggested that they were in fear of being shot.

The two holdalls were found to contain a total of £225,680. Also in the car was the Wild mobile telephone. A subsequent search at Waterfall Road revealed another holdall containing about 10 kg of cannabis resin. Various papers were also discovered in the car, on the person of Clarke at Waterfall Road and at Clarke’s home. The details are immaterial. It is sufficient to say that according to the Crown they disclosed links between Simon Preston, Waterfall Road and the contents of the holdall, between Zena Preston, Michael Denton and Hickmott, and between the occupants of Waterfall Road and Austen, records of the telephone numbers at Waterfall Road, Hickmott’s

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mobile telephone, Austen’s pager and the Brouwersgracht number; and a note that Andrew Morgan, the driver of the hijacked van, was at Greenwich hospital. There were also names, initials and figures which the prosecution alleged were lists of dealers and quantities of money and drugs.

At the time when police officers were in occupation of 18 Waterfall Road after the arrest a number of calls were made to the telephone. One of the police officers, pretending to be a participant in a drug dealing conspiracy, maintained one end of the conversations. The officers’ recollection and record of these conversations was in issue, but the general nature of three of them seems to have been undisputed. The first was from a man in Amsterdam who showed a pressing interest in the whereabouts of Stephen Preston and of money which he was said to owe. Another was from Elaine who said that she and Preston’s young son were being held hostage in Amsterdam for the return of the money and cannabis to Holland. The third was from Austen, who spoke of the hijacking of 100 kg out of 200 kg from Andrew Morgan.

Finally, whilst in police custody both Clarke and Austen made statements which, if accurate, contained damaging admissions.

(2) The opposing contentions

From this and other evidence the prosecution asked the jury to infer that Stephen Preston had been exporting substantial quantities of cannabis from Holland to the United Kingdom for some time, and that at the end of July 1989 he had organised a 500 kg load. The hiring of vehicles and the flurry of telephone calls were part of the preparations for this. The plan miscarried when part of the load was hijacked. He came over to London from Amsterdam to put matters right. Zena Preston knew what was going on and helped Stephen Preston, particularly in relation to his financial affairs. Clarke was said to be the principal receiver of the cannabis, organising its distribution with the assistance of Salter. Austen was said to be a wholesale distributor, and Marie Denton assisted Simon Preston in peripheral ways.

The defendants did not deny that there had been a conspiracy to import cannabis, but disclaimed any part in it. In particular, Stephen Preston (on whose defence I will concentrate) asserted that his activities on and after 30 July were not part of a continuing conspiracy which had gone wrong, but were the result of duress imposed on him by the true conspirators. This defence appears to have been revealed in very general terms at a comparatively early stage, but it was not until nearly one month after the start of the  trial that it was explained as follows. Preston had owned a bar in Spain which was raided by the police in consequence of activities in which Preston had played no part. He was forced to leave Spain and went to Holland. Various published materials, including in particular an article in an English newspaper, led many people to believe that he was a drug dealer in a large way, and that England was his particular sphere of influence. Thus, when the Dutch exporters of cannabis (including one of the people who spoke on the telephone to the police officer at Waterfall Road) ran into difficulties with their own distributors in the United Kingdom, they believed that Preston would be able to exercise influence there. Amongst the distributors were Austen, Clarke and Hickmott. To persuade Preston to exercise pressure on Austen and Clarke they made threats to his life and to the life of his son and Elaine. Thus, although it was undeniable that from 30 July he was having dealings with his co-defendants in relation to drugs and money he

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had done nothing before that date, either voluntary or involuntary, in pursuit of the conspiracy into which he was then recruited against his will.

(3) The trial

My Lords, I have set out the principal facts on which the prosecution relied partly because they place in context the crucial significance attached by the prosecution to the cluster of telephone calls passing between apparatus to which the defendants had access both before the hijacking of the van, and afterwards in the interval between the hijacking and the arrest; and partly because they explain why the defence were at such pains to prise out of the investigating and prosecuting authorities as much information as possible about the nature and fruits of the intercept, in the hope that this would show either that Stephen Preston first came on the scene as a result of duress on or about 30 July, or at least that nothing had been said during the telephone calls to suggest that he or any other defendant was party to whatever conspiracy there may have been. It would be possible now to go straight to the issues of law raised by the certified questions. I believe however that this would not be satisfactory. In the first place, the gradual unfolding of this topic as the trial progressed serves at the same time to illustrate the very real difficulties of applying the law in practice, and also to explain how the quite short issues for decision have come to appear so complex. Furthermore, even if your Lordships conclude against the defendants on the certified question of law there remains a need to look very carefully at the course of the trial to see whether, despite the best efforts of the judge and prosecuting counsel, it was so unfair or irregular that the convictions could not justly be allowed to stand. I will therefore set out the relevant events of the trial as shortly as I can, albeit not as shortly as I could wish.

The trial began on 1 November 1989 and concluded (apart from sentencing) on 15 February 1991. Although long it was not exceptionally so by modern standards. The chronology did however have two remarkable features.

The first was the extent to which proceedings took place in the absence of the jury. There were several days of submissions before the jury was empanelled, and a further week before prosecuting counsel began to open his case. Submissions continued to be made at such a rate that three weeks later when counsel for Clarke and Austen made an unsuccessful application for the jury to be discharged on the ground that its concentration had been broken by the repeated interruptions, the jury had been in court for the equivalent of only 6  working days. Although full details are not available for the subsequent stages, it can be deduced that there was only two working days between 6 December and 1 February when the jury was present throughout, and during this period there were more than 40 occasions when the jury were sent out of court. At the time of the application to discharge the jury the trial judge exclaimed: ‘What am I supposed to do when defence counsel take point after point after point?' To this there was no answer, except that it was ‘one of the regrettable things’. Regrettable it certainly was, but since no appeal is founded upon it I mention this only as background to the other remarkable feature of the trial, which was the extent to which the trial took place in the absence of not only the jury, but also of all the defendants and their solicitors. The House was informed that no fewer than 30 working hours were spent in this way. This must surely be without precedent—at least so it must be hoped. How did it come about? The

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transcripts disclose that the defendants and their solicitors were excluded so that three subjects could be discussed between counsel and the judge alone.

The first subject was an indication as to sentence. Before the case was opened to the jury, but after the judge had decided to admit evidence concerning the arrest and conviction of Michael Denton, counsel for Stephen Preston asked to see the judge privately. The judge agreed and there followed a discussion on how the offences alleged should be related to the sentencing bounds established by R v Aramah (1982) 76 Cr App R 190, and also about the ‘discount’ which the judge would apply in the event of a change of plea at this stage. Counsel returned to the matter after the judge had given his adverse rulings on the two questions to which I will shortly come, and immediately before Stephen Preston changed his plea to guilty. Counsel and the judge must have overlooked the strong and recently reported observations by Lord Lane CJ in R v Pitman [1991] 1 All ER 468 at 470, and Russell LJ in R v Smith (Terence) [1990] 1 All ER 634 at  636, [1990] 1 WLR 1311 at 1314, which I have already quoted. This episode is a good example of the perils of informal plea bargaining, since subsequently the Court of Appeal granted to all the defendants reductions of sentence on the ground that the sentences imposed did not conform with the judge’s private indication. This complaint is now spent, and I mention the topic only because (a) it accounts for a small part of the time spent ‘in camera’ and (b) the obvious cause of Simon Preston’s change of plea was not only the ruling of the judge on the issue now before the House, but also the confirmation by the judge that his previous indication on sentence still held good.

The second and third subjects discussed in private were connected and require some explanation. Stephen Preston’s defence of duress depended crucially on the absence of any connection between himself and the importation of drugs before the crisis created by the hijacking. His defence was dealt a severe, if not necessarily fatal, body-blow when the judge ruled before the opening of the prosecution case that evidence of the arrest and conviction of Michael Denton could be admitted in evidence. In response, counsel for Preston began to foreshadow a case on the following lines. Nicholas Hickmott was playing a double role. In one capacity he was a police informer passing on information both true and false about his associates. But he was also a dealer in drugs on his own account, operating under cover of his activities as informer. The arrest of Denton was obviously the work of an informer and this informer would know the truth of the matter; namely that Denton had been supplied by Hickmott, and that Stephen Preston had no part in the importation which led up to the supply. To lend colour to this story counsel sought to extract from prosecuting counsel, either voluntarily or by order of the judge an admission that (a) Michael Denton was arrested on information given by an informer; (b) the informer was Hickmott; (c) the immediate supplier to Denton was Hickmott. Ultimately admissions in terms of (a) and (c) were made, but (b) was never admitted. Nor did the judge make any orders relating to the identity of the informer, or as to the production of Hickmott as a witness. Since none of this is the subject of an appeal I need say only that I have seen nothing in the transcripts to suggest that the rulings of the trial judge on this question were wrong. Indeed, Marks v Beyfus (1890) 25 QBD 494, R v Agar [1990] 2 All ER 442 and R v Slowcombe [1991] Crim LR 198 strongly suggest that they were right. What I do find hard to see is why so much of the prolonged and repetitive argument on this point took place in private. It was plain, as the judge well recognised, that Stephen Preston believed from the start that Hickmott was the

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informer, and nothing in the arguments about whether the judge should order disclosure would have told Preston anything that he should not know, or have put Hickmott’s safety in any further peril.

The question of the informer had another aspect. It could have been no accident that the police were observing 18 Waterfall Road after Stephen Preston arrived from Amsterdam. So much was obvious from the start. What did however emerge, perhaps unexpectedly, during the cross-examination of a police officer, was that the police were not only expecting Preston to be there but were expecting him to be in fear of his life—as his behaviour on arrest bore out. Obvious candidates for the source of this intelligence were an informer and a telephone intercept. The possibility of an intercept set in train the prolonged and difficult hearings in private which I will now summarise.

The first step was taken almost immediately. The jury, present during the cross-examination which revealed the possibility of an intercept, was sent out of court. The defendants and their solicitors remained. Counsel for Stephen Preston then called upon the prosecution to tender a senior police officer for cross-examination on the matter. We must assume that he did not then have in mind s 9 of the 1985 Act. On the following morning, 27 November 1989, counsel for the prosecution (Mr Aspinall) invited the court to sit in private, and the greater part of the relevant proceedings took place in the absence of the defendants and their solicitors. Counsel disclosed that a warrant had been issued under s 2 of the Act, and also that there was some material which he wanted the judge alone to see. We do not know what it was, but it cannot have been a record of the intercepted conversation(s) since Mr Aspinall stated that all such records had been destroyed on the orders of the Home Office. There followed a discussion of the ways in which it might be possible without breaching s 9 to disclose intercepted material which might assist the defence. Both Mr Aspinall and the judge were anxious that what could properly be disclosed should be disclosed, particularly if the intercept demonstrated that on a particular day Preston believed himself to be under threat. Mr Aspinall agreed to consult the Home Office to see what could be done, whilst reiterating that there must be no infringement of s 9.

It is significant to note that in the course of this day’s discussions Mr Aspinall was able to convey two items of information, apart from whatever might have been in the document which he wanted to show the judge. First, he disclosed that a senior police officer in the case had spontaneously volunteered to him the existence of the intercept and also the existence of a warrant, which at that stage Mr Aspinall seemed willing to produce for inspection. Secondly, Mr Aspinall indicated that he knew at least something about what the intercepts did and did not contain. For example he was able to say that the forewarning of Michael Denton’s journey did not come from an intercept, nor (if I correctly understand a very difficult passage in the transcript) did the anticipation of Stephen Preston’s arrival from Holland come from this source. On the other hand it seems that something had emerged from the intercept about a journey made by Salter and Clarke, and also about the telephone message to Zena Preston at Wakefield. I will return to these disclosures by Mr Aspinall at a later stage.

The matter came back before the court six days later, by which time Mr Aspinall had spoken to a senior adviser to the Attorney General. He was able to tell the court that (a) he (Mr Aspinall) had known for some time ‘through another source’ the premises concerned in the tapping, (b) he did not know the dates of the tapping, (c) the senior officer in the case had informed him that so

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far as that officer was aware there was no material derived from the intercept which would assist the case of Stephen Preston, and (d) ‘a certificate has been issued’. This latter point was not explained, and I can only assume that the reference was to a certificate under s 3(2)(b) of the Act. Mr Aspinall did however make it clear that the further information which defending counsel had sought was not going to be revealed to him. Further discussion took place, in the course of which the judge’s  recognition that the intercept tape had been destroyed was made perfectly clear. In the upshot, the judge invited Mr Aspinall, in the light of the recently disclosed details of Stephen Preston’s defence of duress, to go back to the Attorney General to see whether there was anything in the material arising out of the intercept which could conceivably be of use to the defence.

This Mr Aspinall did, but after discussions not only with the Attorney General, but also with advisers to the Director of Public Prosecutions and the Home Office he reported to the court:

‘The Attorney General is of the opinion that it is not my duty, as counsel for the Crown, to acquaint myself with such material as exists relating to the intercept for the purpose of considering whether any of that part of that material need be disclosed. Your Honour, the reason for his opinion is this. In the particular circumstances of this case, it is impossible to envisage any manner in which evidence relating to, or concerned with or arising out of the intercept might be adduced into this case whether orally, by admission of fact or otherwise, which will not tend to suggest the existence of the warrant. Thus, in any event, such evidence is inadmissible at any stage of this trial and any question concerning such evidence is impermissible at any stage in this trial. Accordingly the need for me to acquaint myself with such material as exists for the purpose of disclosure is unnecessary.’

This seems to have been treated as the end of the matter so far as any question of disclosure was concerned. Counsel then raised the question of fairness, as regards the admission of evidence about the plethora of telephone calls around the crucial dates. It was contended that the prosecution could not fairly be allowed to invite inferences from this evidence whilst refusing to disclose information about the intercept which might show that the inferences were unfounded. The evidence should therefore be excluded and that the discretion conferred by s 78(1) of the Police and Criminal Evidence Act 1984 should be exercised.

After further argument (still conducted in private) the judge ruled as follows. (1) He rejected the application to exclude the evidence under s 78. (2) He ordered that ‘no evidence may be given about the matter and no questions asked’. (3) As regards an order which he had previously made that the individual defendants should not be informed about the nature of what was going on in private, counsel should now say no more, if asked whether there had been intercept, than that they were not at liberty to say.

The judge expressly stated that he was not ruling on the question of disclosure by prosecuting counsel, no doubt because once Mr Aspinall had reported on the latest discussions the matter was treated as a fait accompli, given the non-existence of the transcript and tapes, coupled with the inhibitions created by s 9.

It was after the judge gave this ruling in private, on the same day as his ruling on the issue of the informer and on the application to discharge the jury, that

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Stephen Preston changed his plea to guilty. This was not however the end of the matter. The judgment of the Court of Appeal reveals the unease felt by the members of that court about the extent to which prosecuting counsel had been able to comply, and had complied, with the Attorney General’s guidelines (see Practice Note [1982] 1 All ER 734), and pressed counsel for elaboration. In response, as the judgment records (95 Cr App R 355 at 373):

‘... counsel for the Crown during the course of the hearing made a clear and unequivocal statement to this court that he had performed the heavy duty which we have identified and that in fact in this case there was no material available to the Crown which was inconsistent with the way the case had been presented on behalf of the prosecution or which  might have furthered the defendants’ defence.’

The duty referred to included, as I understand it, the duty of counsel earlier pronounced upon by the court, to ensure that he had been put in a position where he could properly determine how the case for the Crown should be presented. Later, after the close of the argument counsel for the prosecution furnished a memorandum, drafted in consultation with the Attorney General, which stated in part:

‘Consistently with the submissions already advanced as to the true construction and purpose of the 1985 Act and the duties of prosecuting counsel, they have not considered it right to seek nor have they received any instructions as to the continuing existence or nature of any intercepted material within the meaning of the 1985 Act.’

The court was not completely reassured and before giving judgment asked the following question (95 Cr App R 355 at 374):

‘“Have you at some stage received information which enabled you to satisfy yourself (A) that in your judgment the Crown’s case was not presented in relation to any defendant in a manner which was inconsistent with information known to the Crown?” To that part of the question counsel for the Crown answered “Yes”. We then continued: “(B) That there was not information known to the Crown which was not disclosed which might have assisted the defence of any defendant?” Again the answer was “Yes”.’

I should add that during the argument in the Court of Appeal it was disclosed that the only intercept was on the telephone at Waterfall Road.

There are problems here. For example, ‘the Crown’ is an ambiguous expression, often used to denote those who conduct prosecutions on behalf of the state, but on other occasions denoting the state as indivisible entity. What is known to the officers of the Crown in the latter sense would by no means always be known to those who prosecute on the Crown’s behalf. I must assume that counsel for the prosecutor was using the expression in the narrower sense, for how else could he have assured the court that he had made the appropriate enquiries about the available information whilst at the same time asserting, in conjunction with the Attorney General, that he had no right to ask for that information? For these and other reasons their Lordships pressed counsel for the prosecutor on the hearing of the appeal for further elucidation, and proposed that if all else failed at least the House should be acquainted with the proscribed material. It then emerged, not only that the physical products of the

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intercepts had long ago been destroyed, but also (if I correctly understood the information relayed by Mr Moses from one of his groups of clients) that those concerned in the intercepts could probably no longer be identified, and if identified could probably not remember what had been said. My Lords, I believe that we have no choice but to accept this, although (as will have been seen) the senior officer in the case appears to have had at least some concrete information, which through Mr Aspinall was relayed to the court during the private hearings.

III. THE ISSUES IN THE CASE

(1) Section 9

After all this detail it is time to draw back and consider what the case is really about. For much of the trial and the appeals it seemed to about s 9. This is not surprising. So long as there persisted the belief that there was somewhere, in the hands of someone, a cache of material stemming from the interceptions it was natural to consider whether s 9 allowed the prosecuting authorities to put this material before the jury if they thought it right to do so, and whether in the absence of voluntary disclosure there was any means that the true state of affairs could be brought out into the open. The possibility that s 9 might permit affirmative answers opened up the complex of issues concerning the relationship between the positive duty of disclosure exemplified by the Attorney General’s guidelines (Practice Note [1982] 1 All ER 734) and by R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 and the inhibitions created by other provisions of the 1985 Act and the common law of public interest immunity.

There was another reason why s 9 loomed large. The conduct of prosecuting counsel was powerfully influenced by the advice, or perhaps more accurately the instructions, given by the Attorney General. Their gist was that since nothing which might be disclosed to prosecuting counsel and through him to the defendants could in the light of s 9 be put in evidence before the jury there was no need to override the interests of secrecy by any further disclosure.

I will take the latter proposition first. Mr Moses did his best with it, but he had other concerns to safeguard. I think it a great pity that the list of 13 counsel who appeared on this appeal was not augmented by one specifically charged to expound the wider interests of the state where they appeared to contradict the general duties of the prosecuting authorities as laid down by recent decided cases. Absent representations from such a source I can only say that the proposition appears quite unsustainable.

In the first place, the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless. Often, the train of inquiry which leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible, and this may apply, although less frequently, to the defence as well as to the prosecution. As the Court of Appeal pointed out in R v Ward [1993] 2 All ER 577 at 601, [1993] 1 WLR 619 at 645–646, it is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered and from which the prosecution have made their own selection. In my opinion the test is materiality, not admissibility.

Secondly, the Attorney General’s proposition overlooks the essential function of the investigating and prosecuting authority which it must perform alongside its more obvious tasks of discovering, marshalling and presenting the evidence against the accused, namely to ensure that the prosecution of a

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suspected offender is conducted fairly. One aspect of this duty is to consider whether amongst the material to which the authority alone is privy there is material which suggests that the suspicions are unfounded, or that apparently damaging evidence should be viewed in a more favourable light. Upon such consideration the authority should decide whether the prosecution should proceed at all, and if so in what way it should be presented. Counsel for the prosecution plays an indispensable part in this function, and his role as arbiter between the adversarial interests of the prosecution and the broader dictates of justice cannot be effectively performed unless he knows everything material that there is to know. The Attorney General’s advice seems to ignore this entirely. Moreover the logic of the advice has disturbing implications in the present context. The question of admissibility arises, if at all, through s 9. Assuming that this has the meaning for which the prosecutor contends, the products of an intercept are made inadmissible because the interests of state demand that the whole business should be kept secret. If the Attorney General is right it must follow that even if the contents of the intercept would clearly demonstrate to prosecuting counsel that the accused person is innocent he must be kept in ignorance of it, and in the interests of secrecy left to press unwittingly for an unjust conviction. My Lords, this is raison d’état indeed, and I would not hold it to be the law of England unless compelled to do so. I find no such compulsion in the Attorney General’s advice, for even if it gave a sound reason for refusing disclosure to the defence (which for the reason stated I believe it does not) the logic cannot be transferred to the supply  of material, admissible or otherwise, to prosecuting counsel. If this, too, is to be withheld, a justification must be found elsewhere. I believe that the right place to search for it is in s 2, and that although the way in which the matter arose at the trial made it natural to concentrate on the questions which counsel for the defence might properly ask in cross-examination, the preoccupation with s 9 has tended to obscure the real point in the case.

(2) Section 2

I therefore turn to s 2, and in particular to the words ‘for the purpose of preventing or detecting serious crime’ in sub-s 2(b), the crucial importance of which had become clear by the conclusion of the argument before this House. If, as the defendants submit, these words go beyond the forestalling of future crimes and the discovery that crimes have been committed in the past, and by whom and in what manner, and if in particular they extend to the amassing of evidence with a view to the prosecution of offenders, then the ‘arrangements’ made by the Secretary of State under s 6(1) must (by virtue of the references back to s 2(2) in sub-ss (2) and (3) of s (6)) contemplate that the documents will not be destroyed whilst they are necessary for the purpose of a prosecution, using that term in its broadest sense. Now that the disclosure of unused materials compiled in relation to an actual or alleged offence has been recognised as one of the functions of the investigating and prosecuting authority the ‘arrangements’ must be such that the documents would not immediately be destroyed but would be kept available for disclosure until an intended prosecution was either abandoned or completed. It might be that the documents, or some aspects of them, would be subject to some special form of public interest immunity, on which a ruling might have to be sought from the court, but subject to this they would be on the same footing as any other documents in the case. If this were the true position it would be but a short step from R v King (25 November 1992, unreported) to hold that the destruction of

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the material soon after it had been compiled was a material irregularity in the course of the trial within the meaning of s 2(1)(c) of the Criminal Appeal Act 1968 and that the proviso could not in the circumstances apply. Furthermore it would plainly be unfair to allow the prosecution to rely so heavily on the fact that the telephone calls were made, and on inferences about their purpose, when the authorities had without lawful excuse prevented any inquiry from being made about what had actually been said.

If, on the other hand, the narrower reading were to prevail the case for the defendants would be far less compelling. If the purposes for which the grant of the warrant, and hence the retention of the physical material and the disclosure of the contents, were necessary did not extend to the prosecution of suspected offenders the destruction of the material was not only a permissible act but one which those responsible were bound by s 6 to perform. In such a case the defendants could hardly argue with any hope of success that it amounted to an irregularity, and they would have to fall back on other objections, notably that even if the destruction was legitimate it created a state of affairs where subsequent reliance on the bare fact of the telephone calls was unfair.

The paradox of these arguments is plain. In the ordinary way, if telephone intercepts are followed by a prosecution one could expect that if  they revealed anything material it would favour a conviction, so that counsel for the Crown would argue for, and counsel for the defendant against, the retention of the material and its deployment at the trial, notwithstanding s 9. This is precisely what happened in R v Effik (1992) 95 Cr App R 427, where the Crown successfully argued before the Court of Appeal that intercept material which had apparently been allowed to survive could be given in evidence. Positions are now entirely reversed. In support of the appeals against conviction we have heard counsel for the convicted defendants arguing with eloquence that the statute should be given the wider meaning, so that in the majority of cases where the material will help the Crown its exclusion will not enable wicked people to escape justice. This rather unusual stance was matched by that of counsel for the prosecutor, who maintained that the judgment in R v Effik procured by arguments advanced on behalf of his client should be overruled.

The parties cannot be criticised for this reversal of roles which was forced on them by the shape of the issues, but it did entail that attention was concentrated on the anomalies, impracticalities and risks of injustice which the statute may create in the isolated case where the defence stands to gain from disclosure, and that the arguments relegated to the background the more usual situations with which it was designed to deal. I therefore suggest that the inquiry should begin by considering the words of s 2(2) in the light of the mischief at which the Act was aimed, and only then to consider whether the interpretation reached is so incompatible with the demands of justice as now understood that it must be forced to yield.

On the wording of the Act considered in isolation the arguments are very short. To my mind the expression ‘preventing and detecting’ calls up only two stages of the fight against crime. First, the forestalling of potential crimes which have not yet been committed. Second, the seeking out of crimes, not so forestalled, which have already been committed. There, as it seems to me, the purpose comes to an end. I accept that the successful prosecution of one crime may in a sense prevent another, either because it puts the particular offender out of circulation for a while, or because the fact of a conviction in respect of one crime may deter the commission of others. But although prevention in this sense may be a by-product of a prosecution the word seems a very odd choice if

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the purpose of the interception was to reach forward right up to the moment of a verdict. If this was what Parliament intended I can see no reason why it should not have said so in plain language. That a means to do so was ready at hand is shown by the new s 45 of the 1984 Act, substituted by Sch 2 to the present Act, where the contrast between prevention on the one hand and criminal proceedings on the other is plain to see. This was not the result of a thoughtless borrowing of the previous wording without regard to the new context, since as I have shown the shape and language of the substituted s is different from the old. The only tenable explanation is that when Parliament used two different expressions in the same Act in each case it meant what it said.

This conclusion accords with the practicalities of s 6, the plain intention of which was to allow the narrowest possible currency to the physical products of the interception. With the handful of people in the public service engaged in the use of intercepts for the forestalling and detection of crimes this makes sense, but if the purpose includes the prosecution of offenders it is impossible to imagine any ‘arrangements’ made by the Secretary of State under s 6 which would prevent the materials from being liberated into the trial process, as happened in R v Effik, after which any attempt to control their wider dispersion would be hopeless, thus compromising both the secrecy of the interception process and the privacy of those whose messages had been overheard.

The narrower reading also makes sense of the otherwise impenetrable s 9. If the purpose of Parliament was to allow the intercept materials to become part of the prosecution process it is hard to see any point in a provision which would make it wholly or at least partially (according to how the section is read) impossible to use them in that process; and if that had been the intention it is equally hard to understand why Parliament did not say so in plain language. By contrast, on the narrower reading of s 2 there would be no need to make explicit provision for the admissibility of materials which by virtue of s 6 would no longer exist, and the purpose of s 9 can be seen as the protection, not of the fruits of the intercepts, but of information as to the manner in which they were authorised and carried out. Inquiries as to these matters were to be confined to the tribunal under s 7, and the defendant was not to have the opportunity to muddy the waters at a trial by cross-examination designed to elicit the Secretary of State’s sources of knowledge or the surveillance authorities’ confidential methods of work. Evidently the proscription of questioning on the existence of warrants was seen as an economical means of achieving this result.

The narrower reading of s 2 is strongly supported by the history of the Act. I need not repeat this. The criticisms in Malone v UK (1984) 7 EHRR 14 which prompted the government to change its mind and legislate were directed not to the long-established practice but to its inaccessibility, imprecision and lack of formal safeguards. The Act was plainly designed to put these matters right, and I can see no reason to suppose that the government had suddenly and spontaneously decided to go much further and overturn the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders.

My Lords, if this were all I would have felt little doubt. A solution which seems tolerably clear must however be reconciled with the general law on disclosure and the forensic handling of ‘sensitive’ materials. Here, counsel for the defendants have forcefully and rightly emphasised some disturbing problems which may, I believe, fairly be seen as having two aspects. First, to what if any extent may favourable materials (ie those which point towards the possibility that the defendant is innocent) be disclosed to those who have it in

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their power to see that injustice is avoided? Second, if the prosecutor’s argument is sound, by whom does the statute contemplate that this power will be exercised? The dilemma will already be plain. At the one extreme the only intellectual ground ever advanced for saying that the materials should not be disclosed at all, namely the Attorney General’s argument on admissibility, will not hold water. At the other, the notion that intercepted material should be disclosed in the same way as other unused material, subject to the same restrictions (mediated by prosecuting counsel and the judge) as in the case of any other ‘sensitive’ material is inconsistent with the hypothesis on which we currently proceed, and must be discarded. There must accordingly, so the argument runs, be some intermediate solution whereby someone in the chain consisting of telephone engineer/transcriber/notetaker/officer in the intelligence unit/senior police officer in the case/Crown Prosecution Service official, decides that the material is favourable to the defendant, and causes (by some mechanism not explained) a prosecution which would otherwise have been brought to be aborted. This decision must be taken high up the chain, for of the two supposed functions of the intercept ‘prevention’ is immaterial since a crime has not been prevented (otherwise the question of short-circuiting a prosecution would not arise) and ‘detection’ has come to an end once the machinery of prosecution begins to revolve. The decision must also be taken at an early stage, for on the prosecutor’s reading of s 2 and the account of the current practice furnished to the House in writing during the argument of Mr Moses, the relevant documents and tapes are destroyed within weeks and the listeners and note-takers will soon have forgotten what they heard and wrote.

My Lords, the difficulties which face the decision-maker if the prosecutor’s argument is correct need little elaboration. Psychologically, he is conditioned to apply the strictest of self-discipline to the collection and use of the materials, resisting the temptation to reveal anything which would enable the criminal whose offences he is helping to detect to be held to account; yet at the same time he is required in this one respect to contradict that discipline by disclosing materials which may benefit the accused at a trial. The practical problems are equally great. The decision-maker has to decide whether what he hears may be helpful to a defendant not yet identified, not yet charged in relation to offences not yet determined, and perhaps not even committed, who may raise defences which under current practice can be concealed until the trial is well under way. It may be that in practice the difficulties are not as great as they have been made to seem, but the system nevertheless seems a poor substitute for the formal methods applied in the ordinary case of sensitive materials, which invoke the participation of prosecuting counsel and the judge, fully informed of the current state of the issues and having the conduct of the trial as their only objective.

Moreover, in the only two cases of which the House has detailed knowledge the system has broken down. When invited to explain how it happened that in R v Effik (1992) 95 Cr App R 427 the prosecution had successfully pressed for the admission of evidence which according to the stance now taken should have been destroyed long before it reached counsel for the prosecution, let alone a trial, Mr Moses could do no more than say that counsel in R v Effik had been wrongly instructed. This total failure to understand and apply even the elements of the system does not inspire confidence in the delicate balance between destruction and disclosure which the decision-maker is required to perform. Again, even in the present case, where prosecuting counsel and the court were at pains to see that the statute was adhered to, some information had been furnished to counsel and the senior police officer (by whom, when and in

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what terms we still do not know) which on the Crown’s present case should not have been revealed.

In the end, however, I consider that the very real apprehensions voiced by counsel for the defendants cannot prevail over the plain intent and wording of the Act. The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. Hence ss 2 and 6. These policies are in flat contradiction to current opinions on the ‘transparency’ of the trial process. Something has to give way, and the history, structure and terms of the statute leave me in little doubt that this must be the duty to give complete disclosure of unused materials. The result is a vulnerable compromise, but it may be the best that can be achieved. At all events I conclude that it is the one which the statute does achieve, and I therefore accept the argument for the prosecutor on the principal issue in the appeal.

My Lords, I am conscious that in giving my reasons for this opinion I have omitted any detailed analysis of the judgments of the Court of Appeal in R v Effik and in the present case. In doing so I intend no discourtesy whatever  to the Court of Appeal whose judgments I have studied with care and profit. The fact is, however, that the arguments addressed in R v Effik were fundamentally different from those which your Lordships have heard, and the concentration on s 2 rather than s 9 has given a new perspective to the arguments in the present case. I therefore believe it permissible not to prolong an already long judgment by discussion of these cases, and simply to say that I agree with the decision of the Court of Appeal in the present case albeit not altogether with the reasons for it, and that in my opinion the decision in R v Effik should be overruled. Nor do I believe it necessary to discuss the decision of a very strong Court of Appeal in R v Hennessey (Timothy) (1978) 68 Cr App R 419. Since this antedated both the 1985 Act and the recent group of authorities on disclosure I see nothing in its general sense  inconsistent with the view which I propose.

(3) Section 78(1) of the Police and Criminal Evidence Act 1984

I turn to the alternative argument for the defendants, that if the physical intercept materials were rightly destroyed and their contents irretrievably lost the interests of fairness demanded that the evidence derived from the ‘metering’ of the telephone calls should have been ruled out under s 78(1) of the Police and Criminal Evidence Act 1984. (The expression ‘metering’, conveniently used in argument, denotes the recording by the telecommunications authorities of the making of telephone calls, though not of their contents.) It will be recalled that we are here concerned with the exercise of a discretion by the trial judge. This should not lightly be overruled, and still less so (as it seems to me) by this House when the Court of Appeal has declined to intervene. Nevertheless the discretion must of course be set aside if it is wrong in principle or manifestly ill-judged.

My Lords, I must own that this question has caused me considerable anxiety. I am now satisfied however not only that was the decision of the trial judge within the bounds of a reasonable exercise of his discretion but that it was right, essentially for the reasons given by the judge at the time. Take first the case where there are no intercepts at all. There, it would be impossible to argue with success that evidence derived from ‘metering’ should not be admitted, or that the jury should not be invited to draw inferences from it, simply on the off-chance that there might have been something in the conversations tending to show that the inference was unsound. Next, assume that some of the calls

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had been intercepted, that the contents had been screened and nothing found which might benefit the defence and that the system had been operated in accordance with the method for which the Crown now contends, so that no information at all reached the prosecuting authorities. If it afterwards came to light that interception had taken place, could it be argued that admission of  evidence of metering was unfair? Surely not. Surveillance which produces no relevant material must for this purpose be the same as surveillance which has never happened. Take one step further and assume that some material, none of it usable, has been mistakenly disclosed to prosecuting counsel but has got no further. I can see no distinction in principle. Finally, the present case, which differs only in that counsel for Stephen Preston had begun to open up a line of questioning forbidden by s 9, and indeed by the whole thrust of the Act. This led, in the anxiety of all concerned to comply so far as possible with the general obligations of disclosure, to a confused situation in which a quantity of information was revealed which could, and in some respects should, properly have been kept secret. This may well have then fostered the impression that the Crown was choosing the favourable parts of the material and suppressing the rest, founding an argument that it should all be allowed in, or none. Nevertheless, having now read the transcripts of all the relevant parts of the trial, and reconsidered in the light of them what has been said on behalf of the Crown both in the Court of Appeal and before your Lordships’ House I am satisfied that this is not what happened. It may well be that those standing behind prosecuting counsel had not sufficiently worked out the implications of the statute under which they were required to operate, and the resulting unsteadiness of aim created understandable suspicions. The judge however did very clearly see the point, that Stephen Preston could not take advantage of suspicions which would never have arisen but for the attempts made on his behalf to cross-examine in a manner prohibited by the Act. In every case where evidence of metering is admitted there is a risk (albeit probably not large) that the inference sought to be drawn is ill-founded, and would be contradicted if all the conversations were recorded and put in evidence. But this is a risk regularly accepted in cases of this kind. The additional factor that someone does know what was said, but is not allowed to tell, except for the purpose of preventing an unjust prosecution, cannot alter the logic of the position. Parliament has grasped the nettle and put the interests of secrecy first. The notion that by doing so it has inferentially rendered inadmissible evidence of metering which would otherwise be unobjectionable, and which is recognised as such by the new s 45, cannot in my opinion be sustained. In company with the Court of Appeal I would reject this ground of appeal.

(4) Hearings in private

Counsel for the prosecutor did not seek to justify the extent to which the defendants and their counsel were excluded from the trial. It is not the function of the House to conduct a post mortem. The present appeals were brought to resolve questions of principle. All trials are different, and the House has neither the duty nor in this case the means to form a general impression of the trial. The combined resources of six groups of solicitors and seven junior counsel were unable to muster more for the House by way of basic factual and procedural information than six rival agreed statements of facts and issues and a wretched jumble of fragments from the transcripts. No clear picture emerged during argument, and although a dozen volumes of transcript were subsequently

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obtained, thus enabling the issues to be put in context, these were plainly insufficient to give a true perspective on the trial. It would therefore be unfair as well as  inappropriate to labour the history of what is now accepted to have been a serious irregularity in the course of the trial. At the same time I think it right to make four points. First, the lucid, balanced and structured direction to the jury demonstrated great care in preparation. Second, the judge was required to apply the emerging law on disclosure and sensitive materials without the benefit of R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619 and R v King (25 November 1992, unreported), a task further complicated by the overlay of the 1985 Act. Third, the judge had to tackle the administrative as well as the purely legal problems as they arose, whilst trying to maintain the faltering momentum of a trial which had already been much interrupted. Finally, the judge made a number of rulings on crucial issues which in my opinion were quite right.

All this being said, however, I think it undeniable that in the conduct of the trial two important errors were made. First, the exclusion of the defendants and their solicitors for such long periods. I need not repeat what I have said about the time attributable to the accomplice question and to plea-bargaining. As regards the third element I cannot see why it was necessary to exclude the defendants from the legal argument about how the question of disclosure should be dealt with. The judge may have been justly apprehensive about the disclosure itself, but the argument about what if anything it should comprise could have contained nothing detrimental to the public interest or to the safety of an informant, as witness the fact that the defendants were allowed to be present during argument on the same issue in the Court of Appeal. Secondly, although I appreciate why it should have been thought necessary, as a holding measure, to prevent counsel from telling  their own clients what was going on, once the judge had been enabled to assess the position there was no need to keep the interdiction in force. In reality, I doubt whether the defendants failed to learn by less orthodox routes what they should have been told by their legal advisors, but the principle is important. R v Davis [1993] 2 All ER 643, [1993] 1 WLR 613 demonstrates after the event that the trial was in this respect also irregular.

My Lords, a situation therefore exists which will only rarely arise before the House. That it may be necessary for the House on occasion to apply the proviso to s 2(1) of the Criminal Appeal Act 1968 is obvious, for it may happen that where the Court of Appeal has held that (for example) there has been no material irregularity in the course of a trial and the House has taken a different view, there is no tribunal except the House available to consider the proviso. But this must be the exceptional case. I find it hard to envisage an instance where the House would agree with the Court of Appeal that there had been a material irregularity, and yet disagree with the opinion of that court that no substantial injustice had resulted. Even if it were a matter on which a question of law could properly be certified, which it was not here and in my opinion could not have been, the matter is far better left to the up-to-date practical experience of the judges who sit in the Criminal Division of the Court of Appeal. This being said, I feel no doubt that the proviso can be properly applied in the case of an irregularity such as the present; and also no doubt, having studied the evidence against Zena Preston (on whose behalf the principal arguments on this score were addressed), that although the exclusion of the defendants from the trial brought about a real hardship of which they had every

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right to complain, the unsatisfactory aspects of the trial do not cast doubt on the reliability of the verdicts. I therefore reject this ground of appeal.

IV. SUBSIDIARY QUESTIONS

The opinions so far expressed are sufficient to dispose of the appeals. There are however three matters to which I will briefly draw attention. The first concerns s 9, which has hitherto loomed so large in the proceedings. The Court of Appeal decided, following R v Effik (1992) 95 Cr App R 427 in this respect, that the section did not operate to render inadmissible in evidence the contents of intercepts (see 95 Cr App R 355 at 365), and I am inclined to agree that if the parties were by agreement or admission to put the material before the court there is nothing in the section to prevent them. In practice, however, the point is of little or no importance, since if the system established by the Act is working properly the material will have been destroyed long before the trial, and if it is favourable to the accused the prosecution will not have been pursued.

Secondly, there has been discussion of whether prosecuting counsel should and properly could disclose the fact of an intercept. This is of no materiality here, since everyone concerned (with the exception of the defendants), knew that there had been intercepts, and the matter was open to all in the Court of Appeal. It is sufficient to say that I agree with the opinion of the Court of Appeal (95 Cr App R 355 at 365), that there is no way in which the defence can compel disclosure of interceptions. On the other hand, I cannot see anything in the Act which would prevent the prosecution from making disclosures if it chose to do so. Such a choice would in the great majority of cases be withheld, since it would be contrary to the thrust of the Act, but it may be possible to envisage cases where the interests of justice would demand that the fact of the intercept, although not its contents, should be disclosed. Further than this it is unnecessary and undesirable to do so.

Finally, I prefer to reserve for another occasion the question whether an appellant can complain of a material irregularity if he has pleaded guilty. For present purposes I have been content to assume without deciding that he can, and therefore need not enter into the matters discussed in Archbold’s Evidence Pleading and Practice in Criminal Cases (45th edn, 1993) paras 7-33–7-39. Nor is there any cause to discuss how in theory the proviso to s 2(1) of the Criminal Appeal Act 1968 may apply to cases of material non-disclosure and to wrongful failure to exclude evidence under s 78(1) of the Police and Criminal Evidence Act 1984, for it was plain that in the circumstances of this case, and indeed ultimately conceded by counsel for the prosecutor, that if the defendants were right in their submissions on these two main issues the convictions could not stand.

My Lords, for these reasons I would dismiss these appeals.

Appeal dismissed.

Celia Fox  Barrister.

Richardson v Richardson

[1993] 4 All ER 673

Categories:        FAMILY; Ancillary Finance and Property        

Court:        FAMILY DIVISION        

Lord(s):        THORPE J        

Hearing Date(s):        16, 17, 18 JUNE 1993        

Divorce – Financial provision – Right to apply – Periodical payments – Extension of duration of periodical payments period – Consent order that husband should pay periodical payments until specified date – All subsequent claims to be dismissed if terms of consent order complied with until specified date – Order not containing direction precluding wife’s right to apply for extension – Wife applying for extension before cut-off date in order – Whether court having jurisdiction to extend duration of order – Whether order should be amended to include direction precluding wife’s right to apply for extension – Matrimonial Causes Act 1973, s 28(1A).

In 1984 the wife petitioned for a divorce and in 1987 applied for ancillary relief for herself and her children. A consent order was made under which the husband agreed to pay the wife periodical payments for three years until 1 January 1991. The order further provided that if the husband complied with the order any claim by either party for financial provision would be dismissed and that neither party would be entitled to claim against the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975. In December 1990, some 14 days before the cut-off date specified in the order, the wife applied to vary the order to increase the amount of the periodical payments payable and to extend the duration of the order. The husband contended that the consent order had been made on the basis that the parties were making a clean break settlement and that the wife would not be able to apply for an extension of the order. The district judge decided in favour of the wife, holding that since there had been no express direction under s 28(1A)a of the Matrimonial Causes Act 1973 in the order that the wife would ‘not be entitled to apply … for the extension of the term specified in the order’ the wife was entitled to make a further application for periodical payments. The husband appealed on the grounds (i) that the parties had intended by the order to make a deferred clean break and that s 28(1A) of the 1973 Act only applied where the court had imposed a deferred clean break on an applicant seeking indefinite financial provision and not where the parties had resolved their differences in a consent order, (ii) that the dismissal of possible claims under the 1975 Act was inconsistent with any contingent extension of the wife’s financial provision by way of periodical payments and (iii) alternatively, that if a direction under s 28(1A) was an essential ingredient of the order then the order should be amended under the court’s inherent jurisdiction to include such an direction.

Held – The appeal would be dismissed for the following reasons—

(1) Unless there was an express direction under s 28(1A) of the 1973 Act, the court retained jurisdiction to vary an order made under that Act for a deferred clean break, including the power to extend the limited duration of the order, provided the application was filed before the date of the deferred clean break. If the intention of the order was to preclude a party from seeking any further relief or from seeking to extend the order then that should be expressly stated.

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Since a s 28(1A) direction had not been included in the order and the wife had issued her notice of application for a variation before the cut-off date specified in the order the wife was entitled to apply for an extension and the district judge had had jurisdiction to extend its duration (see p 679 b c, p 680 a b, p 681 d, p 682 e and p 683 e, post).

(2) The inclusion of a provision excluding claims under the 1975 Act did not mean that the order was inconsistent with a right to apply for an extension, since any extension could only be sought during the parties’ joint lives, whereas a claim under the 1975 Act could only be made in the subsequent phase of survivorship. The exclusion of such a claim would only take effect upon compliance with the periodical payments order on 1 January 1991 or any later date to which it might be extended (see p 682 f and p 683 e, post).

(3) It would be wrong to embody a s 28(1A) direction by amendment under the court’s inherent jurisdiction when there was no evidence that consideration of a s 28(1A) direction had ever been drawn to the judge’s attention or weighed by him as one of the relevant factors in the exercise of his discretion (see p 683 d e, post).

Per curiam. The generally understood practice is that, if in negotiations between the parties prior to a consent order dealing with ancillary relief being made the applicant has agreed that her right to apply for an extension of the order within the agreed term should be excluded, a s 28(1A) direction must be included in the order, but if the applicant has preserved her right to apply for an extension that right does not have to be expressed in the order (see p 682 b c, post).

Notes

For dismissal of claims for financial provision, see 13 Halsbury’s Laws (4th edn) 1158, and for cases on the subject, see 27(3) Digest (2nd reissue) 321–329, 11175–11196.

For the Matrimonial Causes Act 1973, s 28, see 27 Halsbury’s Statutes (4th edn) (1992 reissue) 774.

For the Inheritance (Provision for Family and Dependants) Act 1975, see 17 Halsbury’s Statutes (4th edn) (1993 reissue) 388.

Cases referred to in judgment

Carter v Carter [1980] 1 All ER 827, [1980] 1 WLR 390, CA.

Dipper v Dipper [1980] 2 All ER 722, [1981] Fam 31, [1980] 3 WLR 626, CA.

Jessel v Jessel [1979] 3 All ER 645, [1979] 1 WLR 1148, CA.

L v L [1961] 3 All ER 20, [1962] P 101, [1961] 3 WLR 544; rvsd [1961] 3 All ER 834, [1961] 3 WLR 1182, CA.

Lawrie v Lees (1881) 7 App Cas 19, HL.

Meier v Meier [1948] 1 All ER 161, [1948] P 89, CA.

Mills v Mills [1940] 2 All ER 254, [1940] P 124, CA.

Minton v Minton [1979] 1 All ER 79, [1979] AC 593, [1979] 2 WLR 31, HL.

N v N (7 October 1991, unreported), Fam D.

Potter v Potter [1990] 2 FLR 27, CA.

Sandford v Sandford [1986] 1 FLR 412, CA.

Thynne (Marchioness of Bath) v Thynne (Marquess of Bath) [1955] 3 All ER 129, [1955] P 272, [1955] 3 WLR 108, CA.

Page 675 of [1993] 4 All ER 673

Appeal

Robert Simon Richardson (the husband) appealed from the decision of District Judge Roger Bird, sitting in the Bristol County Court on 27 and 29 January 1993, whereby on the hearing of a preliminary issue arising out of an application by Philippa Carol Richardson (the wife) for an extension of the duration of and an increase in the amount of ancillary relief specified in the consent order dated 30 June 1988 entered by Mr Registrar D P Jenkins in the Haverfordwest County Court pursuant to the order made by Judge Lewis-Bowen on 5 February 1988, under which the husband was required to pay the wife £8,000 per annum commencing on 1 February 1988 ceasing on 1 January 1991 the district judge decided that the wife was entitled to apply for an extension of the duration of, and an increase in the amount of, the consent order and ordered that she should receive £12,000 pa for herself indefinitely. The facts are set out in the judgment.

Bruce Blair QC and Richard Todd (instructed by R Nichols Marcy, Walton-on-Thames) for the husband.

David Bodey QC and Sheelagh Corfield (instructed by Trump & Partners, Bristol) for the wife.

THORPE J. This is an appeal on a preliminary point from a judgment given by District Judge Roger Bird in Bristol on 27 January 1993. In order to approach the point of law that I have to decide it is necessary first to establish the history.

The issues arise between husband and wife, who married on 26 September 1970. They were then 27 and 35 and so are now 50 and 58 respectively. The husband is a consultant surgeon and the wife was trained as a state registered nurse. There were two children of the marriage, Charlotte, who is now 19, and Sally, who is now 17. The final matrimonial home was in Wales. It consisted of two properties within one unit, one a farmhouse and the other a mill. In 1984 the wife petitioned for dissolution on the grounds of conduct. On 16 January 1987 she issued her application for ancillary relief in all forms for herself and the two children. That application was listed for contested hearing before Judge Lewis-Bowen sitting in the Haverford West County Court on 5 February 1988. The wife was represented by Mr Morton of counsel, the husband by Mr Singh. An agreement was reached between counsel outside court following negotiations.

The learned judge took a full note of the hearing. In open court he pronounced a decree nisi between the parties. He then adjourned into chambers, as his note makes plain, to consider issues of access and property. The issue of access was not proceeded with. The issue of property was of course compromised. The judge’s note shows that he was told immediately that the parties had come to terms. He was then introduced to the essential financial circumstances. The terms of the consent order agreed between counsel were read out. It was agreed that expert advice should be obtained as to the precise allocation of periodical payments between the children in order to obtain the greatest income tax allowances for the husband. Accordingly the order could not be lodged and effected that day. It was simply agreed that the order would be filed and the case was adjourned for that purpose. So much is clearly recorded in the learned judge’s careful note.

A note was also taken by the associate. In relation to the area of subsequent litigation it says little more than this: ‘Consent order in terms re property (in full and final settlement).’

Page 676 of [1993] 4 All ER 673

The third source of information as to the proceedings on 5 February is an affidavit which I have admitted from Mr Singh. In the earlier paragraphs Mr Singh establishes the history of his involvement in the case and the fact that he attended court between 9 and 9.30 in the morning so that he could proceed with negotiations which he had initiated by a telephone call to Mr Morton on the previous evening. He then records the history of the negotiations and his practice in regard to drafting orders which were intended to effect a clean break between spouses. At para 11 he then says:

‘When we went into Court Mr Morton opened the case. I clearly recollect him stating that this was a “clean break” case. Once the capital was paid that was to be the end of the Petitioner’s claims for lump sum and property adjustment orders. Once three years had expired then her claim for periodical payments in her own right was also to stand dismissed. There was no suggestion that she would be able to come back to Court and apply for an extension to the term of the order. We had not agreed that she would be entitled to apply to extend the term of the maintenance order …’

Subsequently in the affidavit he says:

‘No other application was intended or contemplated … It was our common intention that she should have no such right. This either was or should have been reflected in the order.’

Mr Bodey QC for the wife has not sought to cross-examine Mr Singh on this affidavit or to call any contrary evidence from either Mr Morton or any other source.

It is agreed between counsel in this appeal that the document brought into being between Mr Morton and Mr Singh on 5 February was almost certainly a manuscript document which has not survived. The essential record of what they agreed is a typescript which, although it is dated 5 February 1988 and bears the same date in manuscript, it is agreed between counsel was in reality brought into being at some later date and that both those insertions were designed to refer back to the date upon which it had been originally negotiated. I suspect that the memorandum that appears on it may have been typed onto the document at the latest stage of all. It contains the figures that the parties had agreed to adjourn to await, and they are identical with the figures that appear in paras 5 and 6 of the order as it came to be entered on 30 June 1988. The order follows precisely, or certainly closely, the draft submitted by counsel. It was in fact made by the registrar of the court rather than the judge. The most important provisions for the purposes of this appeal are para 4:

‘The Respondent do further pay periodical payments to the Petitioner at the rate of £8,000 per annum payable monthly on the 1st day of each month commencing on 1st February 1988, such payments to cease with the payment due on the 1st January 1991 and thereafter the Petitioner’s claim for periodical payments for herself be dismissed’,

and para 10:

‘Upon compliance with the terms of this Order any claim by either party for financial provision or property adjustment orders be dismissed and it is further ordered that neither party be at liberty to claim against the estate of

Page 677 of [1993] 4 All ER 673

the other under the Inheritance (Provision for Family & Dependants) Act 1975.’

On 18 December 1990, approximately 14 days before the cut-off date specified in para 4 of the order, the wife issued a notice of application seeking a variation to para 4 of the order of 30 June 1988 for an extension of the duration of the periodical payments payable and an increase in the quantum of those periodical payments. An affidavit in support was filed on the same day. Paragraph 2 recites the consent order under the terms of which the wife had been receiving £8,000 per annum for herself. In para 3 she said, amongst other things: ‘I have no paid employment. I seek a continuation of periodical payments for myself.' Thus the affidavit was, perhaps for strategic reasons, entirely silent in relation to the dismissal provision contained in paras 4 and 10.

The husband’s affidavit in answer was not filed until 16 October 1991. By that affidavit he said: ‘… the terms agreed on the 5th February 1988 were and are intended to have been conclusive and I have acted accordingly.' He also said: ‘… negotiations took place at Court on the basis that we were achieving a clean break settlement.' Those assertions were not traversed or referred to in the wife’s affidavit in reply.

On 27 March 1992 the wife applied for an increase in the orders for periodical payments to the children. On 24 April the husband changed solicitors. On 1 December District Judge Stewart Brown sitting in Bristol stated a preliminary issue, whether para 4 of the order dated 30 June 1988 was a final order or an order of limited duration. That was the preliminary issue which came before District Judge Bird on 27 January 1993. He decided the preliminary issue in favour of the wife. He went on to determine her applications and on 29 January he ordered that she should receive £12,000 per annum for herself indefinitely and he increased the order for periodical payments to the children.

There is a very full note of the submissions and evidence before him. No evidence was called on the preliminary issue but there was extensive evidence, inevitably, on quantum and his note extends to some 31 pages. The note of his judgment is short. I believe that judgment was given late in the day and was compressed perhaps for that reason. What he said in deciding the issue of jurisdiction against the husband is:

‘The general intention of the parties at the time of making the consent order is not what I can look at. I have to look at the face of the order, at what it says, and if the wife is entitled as a matter of law to make this application for variation. I would say that it has always been a source of minor puzzlement that the [Matrimonial and Family Proceedings Act 1984] has a double provision in that it is possible to make an order to dismiss a maintenance application and also have a direction that no further application is to be made. On the face of it for a non-lawyer, if an order was made that a maintenance application was to be dismissed, then that should be the end of it, and on the face of it it ought not to be possible to go back to court again. But this is what the draftsman put in, therefore it was intended to mean something. It seems that what it means [is] that there are two things for the court to say: (1) the right to maintenance is to be dismissed either now or at a date in the future, which is what happened here; (2) have a further order that no one is entitled to make a further application for periodical payments. Therefore I must interpret this as meaning that the present application before the court at the time is to be

Page 678 of [1993] 4 All ER 673

dismissed and that it is possible to make a further application unless the court says that no further application is to be made. The parties are bound by the terms of the order they agreed at the time. It does not say that no application is to be made at a further date and therefore it follows that the wife can make an application to vary and may also include an application to have an extension of the term.’

Against the district judge’s ruling on the preliminary point and against his ruling subsequently on quantum the husband appealed by a notice filed on 10 February, subsequently amended at a later date. On 12 February the wife also appealed, seeking an increase in the quantum of her continuing periodical payments assessed by the district judge. Neither appealed his determination of the wife’s application for increase in child periodical payments.

When this appeal came before me it was agreed between counsel that it would be sensible to argue first the preliminary point. For obviously if the husband were to succeed on that it would be quite unnecessary to continue to investigate the merits.

The submissions for the husband advanced by Mr Blair QC were very helpfully summarised in a skeleton argument which accompanied his chronology. First, I agree with Mr Blair’s submission that the district judge was wrong to exclude the available evidence as to the circumstances in which the consent order came to be made. After argument I ruled that, in addition to the learned judge’s note, the associate’s note and the affidavits of the parties, I should also see the affidavit of Mr Singh.

Secondly, I accept in the main Mr Blair’s submissions on the law as it was prior to the Matrimonial and Family Proceedings Act 1984. The development from Mills v Mills [1940] 2 All ER 254, [1940] P 124 through L v L [1961] 3 All ER 20, [1962] P 101 to Minton v Minton [1979] 1 All ER 79, [1979] AC 593 established that the court had power to dismiss a spouse’s claim for periodical payments and that such a dismissal was final and precluded any further or fresh application. However, these authorities considered consensual dismissal. The subsequent case of Dipper v Dipper [1980] 2 All ER 722, [1981] Fam 31 resolved the debate as to whether such a dismissal could be imposed by the court without consent by holding that it could not. In Dipper v Dipper [1980] 2 All ER 722 at 732, [1981] Fam 31 at 47 Ormrod LJ categorised the orders that may be made upon an application for periodical payments. The passage is in these terms:

‘There are essentially four ways of dealing with applications for periodical payments: first, to make a substantive order; secondly, to make a nominal order, the purpose of which is to enable the party obtaining it to take advantage of the variation section without undue difficulty; the third alternative is to adjourn the application generally if the court does not wish to make any order at that time; the fourth is to dismiss the application, provided the consent of the applicant is forthcoming.’

But, says Mr Blair, those were only the four essential types and the court commonly made orders that were a combination of types 1 and 4. By way of example, ‘periodical payments at the rate of X pounds per annum during joint lives or until further order or until the           day of            19    , upon which date the petitioner’s claims to periodical payments be and the same are hereby dismissed’. That submission I also accept.

What was the effect in law of such a hybrid order intended to achieve a deferred clean break prior to 1984? Mr Blair accepts that during its currency

Page 679 of [1993] 4 All ER 673

either party might apply for variation up or down. He firmly refutes the suggestion that during its currency the recipient might apply for variation by way of extension of the term. He accepts that there is no direct authority to support his submission but contends that that is only because the proposition is too obvious following the decision in Minton v Minton to require explicit authority. Whilst I fully accept his submission that in the case of such hybrid orders the recipient could not apply for extension or further relief once the finite date of last payment had passed, I reject the submission that the court had no jurisdiction to entertain an application for extension filed during the currency of the order. In my judgment that jurisdiction derived from s 31 of the Matrimonial Causes Act 1973. That contracts, even if embodied in court orders, did not curtail that jurisdiction is established, albeit not in relation to an application for extension, by the decision in Jessel v Jessel [1979] 3 All ER 645, [1979] 1 WLR 1188.

The amendments that the Matrimonial and Family Proceedings Act 1984 made to the 1973 Act placed on the court an obligation to consider whether immediately or at some deferred date the parties’ financial relationship could not justly be terminated by way of clean break: see s 25A(1) and (2). Section 25A(3) gave the court the consequential power to impose such a termination in the absence of consent. That enactment was of course necessary as a result of the decision of the Court of Appeal in Dipper v Dipper. The language of s 25A(3) is curious. It puzzled the learned district judge and it puzzles me:

‘… if the court considers that no continuing obligation should be imposed on either party to make or secure periodical payments in favour of the other, the court may dismiss the application with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1)(a) or (b) above.’

This subsection applies to clean break and not deferred clean break as the words ‘no continuing obligation’ make plain. To terminate rights immediately all that is required is the order for dismissal, as the case law had clearly demonstrated since the decision in Minton v Minton. What need therefore for the addition of the words ‘with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1)(a) or (b) above’? At present I can offer no confident answer to that question. However, it is not necessary for me to do so since this case concerns a deferred and not an immediate clean break.

The contribution that the 1984 Act made to s 28, which deals with the duration of continuing financial provision orders, is of course s 28(1A):

‘Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made on or after the grant of a decree of divorce or nullity of marriage, the court may direct that that party shall not be entitled to apply under section 31 below for the extension of the term specified in the order.’

In consequence s 31(1) was amended to read:

‘Where the court has made an order to which this section applies, then, subject to the provisions of this section and of section 28(1A) above, the court shall have power to vary or discharge the order or to suspend any

Page 680 of [1993] 4 All ER 673

provision thereof temporarily and to revive the operation of any provision so suspended.’

These amendments in conjunction are the foundation for Mr Bodey’s simple submission that unless there has been an express direction under s 28(1A) the court retains its jurisdiction to vary under s 31, including the power to extend the limited duration of the order, provided the application is filed before the date of the deferred clean break.

Mr Blair’s fundamental argument is that the new power to direct no application for extension under s 28(1A) does not supplant or derogate from the power to dismiss established by case law. He has repeatedly referred to belt and braces. If the court has made a plain order for dismissal, albeit deferred, that is the belt. An additional direction under s 28(1A) would be the superfluous pair of braces. Here, he says, there was a plain dismissal expressed in paras 4 and 10 of the order of 30 June 1988. Furthermore, the provision in para 10 for the dismissal of Inheritance (Provision for Family and Dependants) Act 1975 claims is plainly inconsistent with any contingent extension of the wife’s financial provision by way of periodical payments. The intention of the parties was plain; see the affidavits of husband and wife together with the unchallenged evidence of Mr Singh. Case law establishes that the court does not determine rights upon technicality or drafting distinctions but construes the contract broadly, looking to the intentions of the parties. He referred first to Minton v Minton [1979] 1 All ER 79 at 82, [1979] AC 593 at 596, from which it is plain that there had been no formal order of dismissal of the wife’s periodical payments claims in the county court. Secondly, he relied on Ormrod LJ’s emphasis on that very point in Carter v Carter [1980] 1 All ER 827 at 830, [1980] 1 WLR 390 at 394 where he said:

‘The other proposition which Minton v Minton decides is that it is not necessary for the court specifically to dismiss the claim. Whether or not the claim is barred depends on the construction of the agreement between the parties. In Minton v Minton what had happened was that an agreement had been reached between the parties which provided, inter alia, for payment by the husband to the wife of maintenance at the rate of 5p per annum until the matrimonial home was conveyed to her. Obviously the purpose was to preserve her right to claim periodical payments in the event of anything going wrong with the conveyance. The agreement went on to provide that when the matrimonial home had been conveyed to her such nominal payment should cease. The construction placed on that agreement, and for my part I would say the only possible construction, was that the wife was agreeing that on the conveyance to her of the former matrimonial home, her application for periodical payments would in effect be dismissed. The House held that that was good enough.’

Thirdly, he relied upon Sandford v Sandford [1986] 1 FLR 412 at 421, where Purchas LJ said:

‘The judge drew a distinction from the point that the notice of application from which the matter stemmed asked for a transfer of property order but not a lump sum order. But, rightly in my view, he found that that technical distinction was of little or minimal weight. In my judgment matters of this kind must be dealt with upon the general merits and meaning of the agreement leading to the order which is finally made by the court; it is not

Page 681 of [1993] 4 All ER 673

an area in which there is much room for technical objection or technical considerations of form; it is a matter of substance.’

Finally, he relied on Potter v Potter [1990] 2 FLR 27 at 30, where the following passage appears in the judgment of Balcombe LJ:

‘The order, like any other legal document, must be construed so as to give effect to its spirit and purpose …’

Furthermore, says Mr Blair, s 28(1A) only applies to those cases where the court imposes a deferred clean break on an applicant seeking indefinite financial provision and has no application to those cases where the parties resolve their differences in a consent order. Such cases are governed by the pre-existing case law and are not affected by the amendments to the 1973 Act made by the 1984 Act.

The argument on both sides has been very skilfully and forcefully presented. In my judgment the outcome is finely balanced, but I have in the end come to the clear conclusion that Mr Bodey is right. In practice the distinction as to whether an applicant is or is not to have the right to apply for an extension of the agreed finite term is often significant and the subject of hard negotiation. The judgment of Eastham J in N v N (7 October 1991, unreported) illustrates just such a negotiation. It has been repeatedly stressed that clarity in the drafting of consent orders is of the utmost importance. First, Ormrod LJ said in Carter v Carter [1980] 1 All ER 827 at 831, [1980] 1 WLR 390 at 395:

‘It should be emphasised that where agreements are made between husband and wife for disposal of their financial claims, one on the other, it is extremely important that the legal advisers to both sides and the court, whether it be registrar or judge, should make it perfectly clear whether the intention is that the wife should be barred from making any further claim for periodical payments or any other relief, or whether the matter is being left open. That means that for the sake of clarity these orders should state clearly either that the claim for periodical payments or other relief is to be dismissed, or that it is left open. We will have to go back to the old “nominal order” in order to make it perfectly clear that the claim remains in existence. Parties must make up their minds which of the two alternatives they want, otherwise the court will have great difficulty in construing some of these agreements to decide whether or not there is, or was, the necessary consent to forgo the statutory right of the parties concerned.’

It seems to me that that passage can be extended by analogy to the distinction between the preservation and the exclusion of the right to seek extension.

Then there is the judgment of Oliver LJ in Sandford v Sandford [1986] 1 FLR 412 at 425, where he said:

‘The instant case may be said to be an object-lesson in the care which ought to be, but is not always, taken in the preparation of consent orders. Like the judge and like [Purchas LJ], I have no doubt whatever, in the light of the correspondence which [Purchas LJ] has read, that if the parties had been asked at the time whether the terms were intended to be comprehensive, full and final settlement of the capital claims of the wife, they would have been bound to give an affirmative answer. If anyone had taken the trouble at that stage to go back to the petition and had observed

Page 682 of [1993] 4 All ER 673

that it contained a claim for a lump sum which had never been proceeded with, but no claim for a property adjustment order, whereas the wife’s application to the court under the petition was for the latter and not the former, it would have become instantly apparent that the consent order ought, in order to avoid any future misunderstanding, to have included a formal dismissal of the claim made in the petition for lump sum.’

In my experience it is generally understood, certainly amongst the specialist Bar in London, that if the respondent has won in negotiation the exclusion of the applicant’s right to apply within the agreed term for its extension then a s 28(1A) direction must be included in the consent order. By contrast, if the applicant has preserved in negotiation her right to apply for an extension, that right does not have to be expressed in the order. It is sufficient to ensure that the s 28(1A) direction is not included.

In the present case I am left in some doubt from the affidavit of Mr Singh whether counsel clearly addressed this issue in negotiation. The fourth and fifth sentences of para 11 are in negative rather than positive terms. It does not appear that the important distinction between preservation or exclusion of the right to apply for extension was ever expressly canvassed with the judge for his consideration in discharging his duty under s 25A(2) to weigh whether the agreed term would enable the wife to adjust without undue hardship to the termination of her financial dependence. Thus I conclude that, even if both the husband and the wife understood on 5 February 1988 that she would not have the right to apply for periodical payments after 1 January 1991, the order as drawn did not have the effect in law of depriving the court of jurisdiction to consider an application filed prior to that date. Considerations of fairness or unfairness can, of course, be reflected in the determination of that application on the merits. I am not impressed by the submission that the inclusion of the Inheritance Act dismissal in para 10 of the order is inconsistent with a right to apply for extension. For instance, the extension actually sought might be for only 12 or 24 months more of the joint lives phase. Claims under the Inheritance Act only arise in the subsequent phase of survivorship. Dismissal would take effect upon compliance with the periodical payments order on 1 January 1991 or any later date to which it might subsequently be extended. Nor do I think that there is any valid distinction between orders drawn by consent and those imposed by the court. Clarity, simplicity and consistency of practice are beneficial both in negotiation and drafting.

In the alternative Mr Blair submits that if the s 28(1A) direction is an essential ingredient of the court’s order then I should amend the order to include it under the court’s inherent jurisdiction. He relies on Thynne v Thynne [1955] 3 All ER 129 esp at 145, [1955] P 272 esp at 313 per Morris LJ, where he said:

‘In addition to powers resulting from rules of court, it is clear that there are necessary powers which are inherent in the jurisdiction of the court. It would, I think, be undesirable to limit the scope of these powers as a result of any words which describe them. I respectfully agree with what was indicated by EVERSHED, L.J., in Meier v. Meier ([1948] 1 All ER 161, [1948] P 89 at 95): “I prefer not to attempt a definition of the extent of the court’s inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so.” Without in any way purporting to categorise and certainly without indicating any limits, a few illustrations in regard to the court’s powers may be mentioned.’

Page 683 of [1993] 4 All ER 673

Then I pass to the third illustration, which is the one relied on by Mr Blair:

‘(c) If the meaning and intention of the court is not expressed in its judgment or order then there may be variation. In Lawrie v. Lees ((1881) 7 App Cas 19 at 34), LORD PENZANCE said: “I cannot doubt that under the original powers of the court, quite independent of any order that is made under the Judicature Act, every court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the court—to vary them in such a way as to carry out its own meaning and, where language has been used which is doubtful, to make it plain. I think that power is inherent in every court.”’

Mr Bodey says that passage essentially applies to orders drawn up mechanically in the registry and does not apply to a case such as this. He also relies on the cases governing the right to rectification in contract.

In my judgment it is important to recognise that in the field of financial provision what the parties agree at the contractual stage is not effective to remove or reduce statutory rights. That can only be achieved at the subsequent stage when the court embodies the agreed terms in an order, having considered in the exercise of the statutory duties whether it is appropriate so to do. Therefore, I do not find the rectification cases helpful. I conclude that it would be quite wrong to embody the all-important s 28(1A) direction by amendment under inherent powers when there is no evidence that this consideration was ever drawn to the judge’s attention or weighed by him as one of the relevant factors in the discharge of his discretionary function.

For all these reasons I arrive at the same conclusion on the preliminary issue as the district judge, although for different reasons, and that part of the appeal is dismissed.

Appeal dismissed.

Bebe Chua  Barrister.

Attorney General’s Reference (No 2 of 1992)

[1993] 4 All ER 683

Categories:        CRIMINAL; Road Traffic        

Court:        COURT OF APPEAL, CRIMINAL DIVISION        

Lord(s):        LORD TAYLOR OF GOSFORTH CJ, JUDGE AND BLOFELD JJ        

Hearing Date(s):        10, 27 MAY 1993        

Road traffic – Dangerous driving – Mens rea – Automatism – Driving without awareness – Whether ‘driving without awareness’ capable of founding defence of automatism – Whether good defence to charge of dangerous driving.

The respondent, a heavy goods lorry driver, after driving between 10 am and 4 pm with regulation breaks, had a two-hour break and then set off again. After driving for a total of over 6 hours out of the preceding 12, during which time he had covered 343 miles, he steered, apparently deliberately, onto the hard shoulder of the motorway and drove some 700 metres along it with only inches to spare on either side before crashing into a stationary white van which had its hazard lights flashing. There was a recovery vehicle in front of the van with

Page 684 of [1993] 4 All ER 683

flashing yellow lights. Two persons standing between the two vehicles received fatal injuries when the van was pushed into the recovery vehicle. Marks on the road showed that the respondent’s lorry had braked only at the very last moment. The respondent was charged with causing death by reckless driving. At his trial the prosecution alleged that the respondent had fallen asleep at the wheel. The defence produced expert evidence from a psychologist who described a condition known as ‘driving without awareness’, in which the driver’s capacity to avoid a collision ceased to exist because repetitive visual stimuli experienced on long journeys on straight, flat, featureless motorways induced a trance-like state in which the focal point for forward vision gradually came nearer and nearer until the driver was focusing just ahead of his windscreen. On the basis of that evidence the defence contended that the respondent was in a state of automatism at the time of the accident and was therefore not to be regarded as driving at all. The judge left the defence of automatism to the jury, who acquitted the respondent. The Attorney General referred to the Court of Appeal the question whether the defence of automatism was open to the respondent.

Held – The condition known as ‘driving without awareness’ could not support a defence of automatism, since automatism depended on a total destruction of voluntary control on the defendant’s part, whereas ‘driving without awareness’ involved only impaired, reduced or partial control. Accordingly the defence of automatism should not have been left to the jury (see p 689 j to p 690 a, post).

Dicta of Lord Goddard CJ in Hill v Baxter [1958] 1 All ER 193 at 195, of Lord Denning in Bratty v A-G for Northern Ireland [1961] 3 All ER 523 at 532, of Winn J in Watmore v Jenkins [1962] 2 All ER 868 at 874 and of Neill J in Roberts v Ramsbottom [1980] 1 All ER 7 at 14 applied.

Notes

For automatism as a defence to a criminal charge, see 11(1) Halsbury’s Laws (4th edn reissue) para 6, and for cases on the subject, see 14(1) Digest (2nd reissue) 17–21, 52–61 and 39(1) Digest (Reissue) 456, 484, 489–490, 3493, 3631–3632, 3663–3664.

Cases referred to in opinion

Bratty v A-G for Northern Ireland [1961] 3 All ER 523, [1963] AC 386, [1961] 3 WLR 965, HL.

Broome v Perkins [1987] RTR 321, DC.

Hill v Baxter [1958] 1 All ER 193, [1958] 1 QB 277, [1958] 2 WLR 76, DC.

M‘Naghten’s Case (1843) 10 Cl & Fin 200, [1843–60] All ER Rep 229, 8 ER 718, HL.

R v Burgess [1991] 2 All ER 769, [1991] 2 QB 92, [1991] 2 WLR 1206, CA.

R v Hennessy [1989] 2 All ER 9, [1989] 1 WLR 287, CA.

R v Quick, R v Paddison [1973] 3 All ER 347, [1973] QB 910, [1973] 3 WLR 26, CA.

R v Sullivan [1983] 2 All ER 673, [1984] AC 156, [1983] 3 WLR 123, HL.

R v Toner (1991) 93 Cr App R 382, CA.

Roberts v Ramsbottom [1980] 1 All ER 7, [1980] 1 WLR 823.

Watmore v Jenkins [1962] 2 All ER 868, [1962] 2 QB 572, [1962] 3 WLR 463, DC.

Cases also citedKay v Butterworth (1945) 173 LT 191.

R v Bailey [1983] 2 All ER 503, [1983] 1 WLR 760, CA.

R v Isitt (1978) 67 Cr App R 44, CA.

Page 685 of [1993] 4 All ER 683

R v Kemp [1956] 3 All ER 249, [1957] 1 QB 399, Assizes.

R v Reid [1992] 3 All ER 673, [1992] 1 WLR 793, HL.

R v Stripp (1978) 69 Cr App R 318, CA.

Rabey v R [1980] 2 SCR 513, Can SC.

Reference

On 6 September 1991 in the Crown Court at Worcester before Mr Recorder Hamilton and a jury the respondent was acquitted by the jury of two offences of causing death by reckless driving. The indictment had alleged that on 16 April 1990 the respondent had caused the deaths of David Lock and Kelvin Anthony by driving his Volvo F10 heavy goods vehicle recklessly on the M5 motorway. The Attorney General referred the case to the Court of Appeal under s 36 of the Criminal Justice Act 1972 to consider whether the state described as ‘driving without awareness’ referred to in the medical evidence given by a defence expert witness was capable of founding a defence of automatism as a matter of law. The facts are set out in the opinion of the court.

R Alun Jones QC (who did not appear below) and Graham Cliff (instructed by the Crown Prosecution Service) for the Attorney General.

Michael Pert QC and Amjad Malik (instructed by Greenwoods, Peterborough) for the respondent.

Cur adv vult

27 May 1993. The following opinion of the court was delivered.

LORD TAYLOR OF GOSFORTH CJ. This is a reference pursuant to s 36 of the Criminal Justice Act 1972 whereby Her Majesty’s Attorney General seeks the opinion of this court on a point of law following an acquittal on indictment. The point is defined in the reference as follows:

‘Whether the state described as “driving without awareness” should, as a matter of law, be capable of founding a defence of automatism.’

This formulation relates to expert evidence given in the particular case. However, we take the point more generally to raise the question: ‘What are the requirements and limits of the defence of automatism?’

On 6 September 1991 in the Crown Court at Worcester the respondent was acquitted after a five-day trial of two offences of causing death by reckless driving.

On 16 April 1990 the respondent, who was a professional heavy-goods lorry driver, drove his lorry from Lincolnshire to Liverpool between the hours of 10 am and 4 pm. At about 6 pm he set off again, driving south on the M6 and then on the M5. Throughout the day he had taken appropriate breaks to comply with regulations. He ate a full meal at a service station between 10 and 10.30 pm. He stopped at another service station later and put on an extra coat. He then drove a further 22 miles before the accident occurred. After junction 6 on the M5, the motorway narrowed from three to two lanes. On passing junction 7, the respondent steered, apparently deliberately, onto the hard shoulder. He drove some 700 metres along that shoulder with only inches to spare on either side before crashing into a stationary white van. The van had its hazard lights flashing and in front of it was a recovery vehicle with a rotating yellow light. Standing between the two vehicles were the two victims who received fatal

Page 686 of [1993] 4 All ER 683

injuries as the van was pushed into the recovery vehicle. Marks on the road showed that braking had occurred only at the very last moment. The respondent had been driving for over six hours out of the preceding twelve and had covered 343 miles.

It was the prosecution case that the respondent had been overcome by sleep at the wheel. In the course of a lengthy interview with the police, he ultimately acknowledged that he was tired but had decided to push on to the next service station and must have fallen asleep.

Both the prosecution and the defence had obtained expert evidence. For the defence, there was a report from Professor Brown, a chartered psychologist and assistant director of the Medical Research Council’s Applied Psychology Unit in Cambridge. The Crown had obtained a report from Professor Horne, director of the Sleep Research Laboratory at Loughborough University. It was agreed by counsel that the evidence of each of these experts should be adduced and the judge admitted it. Professor Horne was called as part of the prosecution case. The respondent did not give evidence but relied upon Professor Brown’s expert testimony, which is central to this reference.

Professor Brown described to the court a condition known as ‘driving without awareness’ and on the basis of his evidence it was contended for the defence that the respondent was in a state of automatism at the time of the accident and was therefore not to be regarded as driving at all. Professor Horne did not accept Professor Brown’s analysis. However, the learned judge in summing up to the jury left the defence of automatism based upon Professor Brown’s evidence as an issue properly open for the jury’s consideration.

It is common ground that, for the purposes of this reference, the court should proceed on the basis of Professor Brown’s evidence at its highest. He said that ‘driving without awareness’ is not a scientific term but a provisional, or interim, descriptive phrase coined at a conference he had attended. He said that there are two essential components to the act of driving: collision avoidance and steering within highway lanes. In a state of ‘driving without awareness’, the driver’s capacity to avoid a collision ceases to exist. This is because repetitive visual stimuli experienced on long journeys on straight, flat, featureless motorways can induce a trance-like state in which the focal point of forward vision gradually comes nearer and nearer until the driver is focusing just ahead of his windscreen. He therefore fails to see further ahead in the central field of vision. However, peripheral vision continues to send signals which are dealt with sub-consciously and enable the driver to steer within highway lanes.

Professor Brown said this condition can occur insidiously without the driver being aware it is happening. However, he also said that usually a driver would ‘snap out’ of the condition in response to major stimuli appearing in front of him. Thus flashing lights would usually cause him to regain full awareness. Professor Brown was unable to explain why that had not happened in the present case. In fact, the respondent told the police when interviewed that he had seen the flashing lights some quarter of a mile before reaching them. Professor Brown was also unable to explain why the respondent should have steered, apparently deliberately, onto the hard shoulder.

Despite his phrase ‘driving without awareness’, Professor Brown agreed that the driver’s body would still be controlling the vehicle, that there would be subconscious motivation to his steering and that, although ‘largely unaware of what was happening ahead’ and ‘largely unaware of steering either’, the unawareness was not total. Asked if nothing intrudes into the driver’s

Page 687 of [1993] 4 All ER 683

consciousness when he is in this state, the professor said: ‘I would not go so far as to say nothing, but very little.' There must, as a matter of common sense, be some awareness if, as Professor Brown accepted, the driver will usually be caused to ‘snap out’ of the condition by strong stimuli noticed by his eyes.

Against this evidential background, the learned recorder directed the jury as follows:

‘Professor Brown … has told you that in his opinion [the respondent] was driving in a state which he describes as “driving without awareness” in which he moved onto the hard shoulder, mistaking it for the nearside lane, and then continued steering subconsciously until a fraction of a second before the collision. Indeed, Professor Brown’s view was that that state of driving without awareness had persisted for quite a long time and had included not only that last half mile, but had included the manoeuvre at junction 6 illustrated in the photograph some miles before. As a matter of law I direct you that if, because of this state of driving without awareness, [the respondent’s] consciousness was, or may have been, so impaired that his mind did not control his actions, he is not guilty of the offence and it is for the prosecution to make you sure that that was not his condition.’

The contention on behalf of the Attorney General is that on the evidence given by Professor Brown, even taken at its highest, there was no basis for leaving the defence of automatism to the jury. Mr Jones QC submits that automatism as a defence in a driving case arises only where there is such total destruction of voluntary control that the defendant cannot be said to be driving at all. He cited Hill v Baxter [1958] 1 All ER 193 at 195, [1958] 1 QB 277 at 283, in which Lord Goddard CJ said:

‘I agree that there may be cases where the circumstances are such that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called Acts of God; he might well be in the driver’s seat even with his hands on the wheel, but in such a state of unconsciousness that he could not be said to be driving.’

Pearson J gave as examples an epileptic fit, a coma, a blow on the head from a stone thrown up from the roadway and an attack by a swarm of bees so that the driver is—

‘prevented from exercising any directional control over the vehicle and any movements of his arms and legs are solely caused by the action of the bees. In each of these cases it can be said that at the material time he is not driving and therefore not driving dangerously. Then suppose that the man in the driving seat falls asleep. After he has fallen asleep he is no longer driving, but there was an earlier time at which he was falling asleep and therefore failing to perform the driver’s elementary and essential duty of keeping himself awake and therefore he was driving dangerously.’ (See [1958] 1 All ER 193 at 197–198, [1958] 1 QB 277 at 286.)

In Bratty v A-G for Northern Ireland [1961] 3 All ER 523 at 532, [1963] AC 386 at 409 a defence of automatism due to an attack of psychomotor epilepsy was raised. Lord Denning said of the actus reus:

‘No act is punishable if it is done involuntarily: and an involuntary act in this context—some people nowadays prefer to speak of it as

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“automatism”—means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.’

The extent of the loss of control is crucial in the present case. Mr Jones referred to three other authorities in support of his proposition that automatism requires there to be total destruction of voluntary control and that impairment or reduction of voluntary control is insufficient.

Watmore v Jenkins [1962] 2 All ER 868, [1962] 2 QB 572 was a decision by a court of five judges in a case where the defendant was a diabetic and sought to raise automatism due to hypoglycaemia as a defence to driving charges. Giving the judgment of the court, Winn J said ([1962] 2 All ER 868 at 874, [1962] 2 QB 572 at 586–587):

‘It is … a question of law what constitutes a state of automatism. It is salutary to recall that this expression is no more than a modern catchphrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs of a person.’

Later he referred to the need for ‘such a complete destruction of voluntary control as could constitute in law automatism.’

Secondly, Mr Jones relies on Roberts v Ramsbottom [1980] 1 All ER 7, [1980] 1 WLR 823, a civil case in which the defendant driver sought to rely on automatism due to a stroke. Neill LJ said ([1980] 1 All ER 7 at 14–15, [1980] 1 WLR 823 at 831–832): ‘… I am not concerned with a total loss of consciousness but with a clouding or impairment of consciousness.' He then referred, inter alia, to Watmore v Jenkins and Hill v Baxter and concluded:

‘I am satisfied that in a civil action a similar approach should be adopted. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retains some control, albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. His position is the same as a driver who is old or infirm. In my judgment unless the facts establish what the law recognises as automatism the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired. Counsel for the plaintiff put the matter accurately, as I see it, when he said “One cannot accept as exculpation anything less than total loss of consciousness”.’

The third case relied upon by Mr Jones is Broome v Perkins [1987] RTR 321 where again a driver charged with careless driving relied on an attack of hypoglycaemia as creating automatism. Glidewell LJ referred to Bratty’s case and to Watmore v Jenkins and said (at 330):

‘The question which is posed in the case can be rephrased to ask: “On the evidence, could the justices properly conclude that the defendant was not conscious of what he was doing and that his actions were involuntary and automatic throughout the whole of the five mile journey over which the erratic driving was observed?” If, during a part or parts of a journey they were satisfied that his actions were voluntary and not automatic, at those times he was driving … When driving a motor vehicle, the driver’s

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conscious mind receives signals from eyes and ears, decides on the appropriate course of action as a result of those signals, and gives directions to the limbs to control the vehicle. When a person’s actions are involuntary and automatic his mind is not controlling or directing his limbs.’

Mr Pert QC concedes that he can find no authority which runs counter to the principle illustrated by those three cases. Moreover, he conceded that despite Professor Brown’s phrase ‘driving without awareness’, the professor’s description of the condition showed that it amounts only to reduced or imperfect awareness. There remains the ability to steer the vehicle straight. There is also usually a capacity to react to stimuli appearing in the road ahead. In the present case the respondent admitted he had actually seen the flashing lights a quarter of a mile from the scene.

Mr Pert confined his argument to the question whether Professor Brown’s evidence properly raised the issue of automatism, which is the sole point of the reference. However, he wished to reserve the question whether the professor’s evidence might have been relevant to refute recklessness (see R v Toner (1991) 93 Cr App R 382).

We were referred to a number of decisions drawing a distinction between insane automatism and non-insane automatism: R v Quick, R v Paddison [1973] 3 All ER 347, [1973] QB 910, R v Sullivan [1983] 2 All ER 673, [1984] AC 156, R v Hennessy [1989] 2 All ER 9, [1989] 1 WLR 287 and R v Burgess [1991] 2 All ER 769, [1991] 2 QB 92). The effect of those decisions is that if the defence of automatism is said to arise from internal causes so as to bring the defendant within the M‘Naghten Rules, then if it succeeds the verdict should be one of not guilty by reason of insanity (see M‘Naghten’s Case (1843) 10 Cl & Fin 200, [1843–60] All ER Rep 229). An epileptic seizure (in R v Sullivan), a stress disorder, prone to recur and lacking the features of novelty or accident (in R v Hennessy) and sleepwalking (in R v Burgess) were all regarded as internal causes. If, however, automatism is said to arise from an external cause, for example a stone hitting the driver on the head, then a successful defendant is entitled to be acquitted.

Here, Mr Pert argues that the precipitating cause of the condition described by Professor Brown was the external factor of motorway conditions. However that may be, the proper approach is that prescribed by Lord Lane CJ in R v Burgess [1991] 2 All ER 769 at 771, [1991] 2 QB 92 at 96 as follows:

‘Where the defence of automatism is raised by a defendant two questions fall to be decided by the judge before the defence can be left to the jury. The first is whether a proper evidential foundation for the defence of automatism has been laid. The second is whether the evidence shows the case to be one of insane automatism, that is to say a case which falls within the M‘Naghten Rules, or one of non-insane automatism.’

The first of those questions is the one raised by this reference. In our judgment, the ‘proper evidential foundation’ was not laid in this case by Professor Brown’s evidence of ‘driving without awareness’. As the authorities cited above show, the defence of automatism requires that there was a total destruction of voluntary control on the defendant’s part. Impaired, reduced or partial control is not enough. Professor Brown accepted that someone ‘driving without awareness’ within his description, retains some control. He would be

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able to steer the vehicle and usually to react and return to full awareness when confronted by significant stimuli.

Accordingly, in our judgment the learned recorder ought not to have left the issue of automatism to the jury in this case and the answer to the point of law as formulated is No.

Opinion accordingly.

N P Metcalfe Esq  Barrister.

Re C and others (minors) (hearsay evidence: contempt proceedings)

[1993] 4 All ER 690

Categories:        FAMILY; Domestic Violence        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        BUTLER-SLOSS AND SIMON BROWN LJJ        

Hearing Date(s):        19, 29 OCTOBER 1992        

Evidence – Hearsay evidence – Child – Admissibility of hearsay evidence of children in civil and family proceedings – Committal application against wife’s former husband – Application to commit former husband for breach of non-molestation injunction – Mother seeking to admit hearsay evidence of child – Whether hearsay evidence admissible in proceedings to commit father – Children (Admissibility of Hearsay Evidence) Order 1991, art 2.

The appellant obtained a non-molestation injunction against her former husband and an injunction restraining him from approaching within 100 yards of the former matrimonial home. She later alleged that he had breached the injunctions by entering the home and commenced proceedings to commit him for contempt. The appellant sought to rely on hearsay evidence given by the parties’ children to a welfare officer and a church minister but the judge ruled that the evidence was not admissible under the Children (Admissibility of Hearsay Evidence) Order 1991 because contempt proceedings were not proceedings within the order and therefore the normal rules as to hearsay evidence applied. Article 2a of the order provided that evidence in connection with the upbringing, maintenance or welfare of a child was admissible in civil and family proceedings notwithstanding the hearsay rule. The appellant appealed to the Court of Appeal.

Held – An applicant seeking to rely on hearsay evidence of a child in civil proceedings pursuant to the 1991 order had to demonstrate that the evidence had a substantial connection with the upbringing, maintenance or welfare of the child, and it was a matter of fact in each case whether the connection was sufficiently substantial. If an injunction was designed to protect the child the connection with the child was likely to be sufficiently substantial for the child’s hearsay evidence to be admissible, but if the purpose of the injunction in a dispute between the parents was to protect a parent the evidence of a child who

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was not himself directly affected by it would be unlikely to demonstrate a substantial connection. Since the injunctions were not granted for the protection of the children and since they were not seriously affected by the alleged actions of their father, the judge had correctly excluded the children’s hearsay evidence. The appeal would therefore be dismissed (see p 692 e, p 693 g to p 694 a d, post).

Per curiam. There is no discretion to exclude evidence which is otherwise admissible under the 1991 order on the grounds that it would be unfairly prejudicial to the defendant, although the weight to be given to the evidence is a matter for the court (see p 694 b to d, post).

Notes

For hearsay evidence generally, see 17 Halsbury’s Laws (4th edn) paras 53–61, and for cases on the subject, see 22(1) Digest (2nd reissue) 82–91, 928–1016.

For admissibility in family proceedings of hearsay evidence of children, see 5(2) Halsbury’s Laws (4th edn reissue) para 835.

As from 5 April 1993 the Children (Admissibility of Hearsay Evidence) Order 1991 was replaced by the Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621.

Case cited or referred to in skeleton arguments

Savings and Investments Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 All ER 975, [1988] Ch 422, CA.

Appeal

The mother appealed from the decision of Judge Charlesworth sitting in the Leeds County Court on 16 September 1992 whereby he held that hearsay evidence of the appellant’s children contained in a report of a court welfare officer and an affidavit by the minister of the appellant’s church was inadmissible under the Children (Admissibility of Hearsay Evidence) Order 1991, SI 1991/1115, in proceedings to commit the respondent, the appellant’s former husband, for contempt for breach of a non-molestation injunction and an injunction restraining the respondent from approaching within 100 yards of the former matrimonial home. The facts are set out in the judgment of Butler-Sloss LJ.

Sally Cahill (instructed by Levi & Co, Leeds) for the appellant.

Roger Bickerdike (instructed by Henry Hyams & Co, Leeds) for the respondent.

29 October 1992. The following judgments were delivered.

At the conclusion of the argument the court announced that the appeal would be dismissed for reasons to be given later.

BUTLER-SLOSS LJ. This appeal raises a short point on the application of the Children (Admissibility of Hearsay Evidence) Order 1991, SI 1991/1115, to contempt proceedings arising out of injunctions granted in divorce proceedings.

The appellant is the former wife of the respondent, by whom she had four children ranging in age from ten to three. They parted in 1989, since when there has been a long and convoluted history involving the parties and the children

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and requiring the intervention of the local authority in the custody application. On 16 October 1991, after a contested hearing, the mother was granted custody of the four children with access to the father under the supervision of his mother. The judge made findings that the father had sexually abused one or more of the children.

On 14 April 1992 the appellant obtained a non-molestation injunction and a second injunction restraining the respondent from approaching within 100 yards of the former matrimonial home. Neither injunction refers specifically to the children, who, however, were living with the mother in their home. The appellant alleged that the respondent was in breach of both injunctions and had on several occasions entered the former matrimonial home. She issued proceedings in May to commit him for contempt. The contempt proceedings were adjourned to 16 September before Judge Charlesworth. The respondent denies all the breaches of the injunctions. The judge was asked to rule on the admissibility of hearsay evidence of the children given to the welfare officer and to a minister of the wife’s church. It is not proposed to call the children as witnesses, which is not the practice in family cases, and the children’s evidence is contained within the report of the court welfare officer and an affidavit sworn by the minister. The evidence if admitted and relied upon would seem to demonstrate several breaches of the second injunction by the respondent. The judge held that the hearsay evidence of the children was inadmissible in the contempt proceedings and that the evidence of the court welfare officer and the minister was to be excluded. The appellant appeals from that order.

In view of the urgency of the matter, the hearing of the contempt proceedings having been fixed for 21 October, at the conclusion of argument we indicated our intent to dismiss the appeal and now give our reasons for that decision. In coming to his decision to exclude the hearsay evidence, the judge held that contempt proceedings are subject to the normal rules of hearsay and are not proceedings within the order. This order was brought into force by the enabling powers of s 96(3) of the Children Act 1989. Article 2 of the 1991 order says:

‘In civil proceedings before the High Court or a county court and in family proceedings in a magistrates’ court, evidence given in connection with the upbringing, maintenance or welfare of a child shall be admissible notwithstanding any rule of law relating to hearsay.’

The judge construed the relevant words, ‘evidence given in connection with the upbringing, maintenance or welfare of a child’, to mean:

‘… proceedings which could directly have a bearing upon the upbringing or welfare of a child—where the best interests or future of the child is being considered’,

and contrasted it with the quasi-criminal contempt proceedings where the evidence was not given in connection (in this case) with the welfare of the children, but to establish whether their father is in breach of the injunctions and, if he is, what penalty he should suffer.

Mrs Cahill for the appellant argued that the evidence she sought to introduce was given in connection with the welfare of the children because they live with the appellant, their mother, and their home is affected by the breaches of the injunctions. Mr Bickerdike for the respondent accepted that the contempt application came within the scope of civil proceedings in the order. He made

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three main submissions in support of the judge. He submitted that the primary issue in contempt proceedings is whether allegations of contempt of court can be established and, if so, what penalty is to be imposed by the court. The welfare of the children is not an issue and evidence is not given in connection with their welfare. This construction of the order would equally apply if the injunctions had been granted specifically for the protection of the children themselves and the contempt proceedings had been brought on their behalf. The effect of this submission is that hearsay evidence of children would be admissible to establish the grounds upon which an injunction could be granted for their protection but not to establish whether the injunction had in fact been complied with and whether therefore it was operating effectively to protect the children. In my judgment that is too narrow an interpretation of the words of the order.

His second submission was that there are conflicting philosophies to be balanced: on the one hand, the liberty of the subject where an application to commit for contempt places the alleged contemnor in danger of prison, and on the other the welfare of the child as the paramount consideration. In such a clash of fundamental principles, he submitted, the issue should be resolved in favour of the liberty of the subject and hearsay evidence should always be excluded.

The issue is not one of balancing competing interests but of construction of the wording of the order. In my view the words ‘in connection with’ have to be broadly rather than narrowly construed and there is no good reason to exclude contempt proceedings as such from the operation of the order, having always in mind the approach of the courts to the liberty of the subject. They are clearly civil proceedings, but for the purpose of establishing the case the burden of proof upon the applicant is analogous to criminal proceedings and a much heavier burden than the civil burden of balance of probabilities. There is a need to recognise the special position of contempt proceedings and also a need to protect children in family proceedings from the consequences of the behaviour of the adults. The order is designed to provide a way for the evidence of children to be placed before the courts in civil proceedings within the scope of the order without the requirement for them to attend court. For the order to apply the applicant seeking to rely upon children’s hearsay evidence should be required to demonstrate that the proposed evidence shows a substantial connection with the upbringing, maintenance or welfare of a child. Children are usually affected by the actions of their parents and frequently by actions not directed at them. Actions, however, of adults neither directed at nor directly affecting the children are not in my view likely to be sufficiently substantial to justify being described as evidence given in such a connection. In family proceedings which primarily affect the parents, it is probable that none of the three factors set out in the order will be directly relevant and hearsay evidence would be likely to be excluded. This would be equally so in contempt proceedings designed to enforce orders made in such family proceedings. It will be a matter of the facts of each case as to whether the connection is sufficiently substantial to justify the hearsay evidence being admitted. For example, if the injunction said to have been breached was designed to protect the child, evidence of its breach coming from the child himself would be likely to be in connection with the welfare of the child. But, in a dispute between the parents where the purpose of the injunction is to protect one parent, the evidence of a child who was not himself directly affected by it would be unlikely to

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demonstrate other than an insubstantial connection. On the facts of this appeal the injunctions were not granted for the protection of the children nor do they appear to have been the objects of or seriously affected by the alleged actions of their father. There is a hint that the position of the youngest child may be somewhat different, but there is no evidence to that effect before us. It is on this basis that I think it is right to uphold the judge’s decision.

His third submission was that there is a discretion in the court to exclude otherwise admissible evidence if the effect would be unfairly prejudicial to the defendant. Mrs Cahill submitted that there was under the order no discretion to exclude evidence but the weight to be attached to it was a matter for the court. Although the issue does not arise in this appeal, I am inclined to accept the latter view. The judge’s approach to hearsay evidence admissible under the order, however, may well depend upon the type of proceedings with which he is concerned and on occasions he may feel unable to place any weight upon it at all.

The judge correctly excluded the hearsay evidence. In my view however, for the reasons which I have set out above, he went too far in ruling that hearsay evidence is always to be excluded in contempt proceedings. I would dismiss this appeal.

SIMON BROWN LJ. I agree.

Appeal dismissed.

Raina Levy  Barrister.

Heath v Tang and another

Stevens v Peacock and others

[1993] 4 All ER 694

Categories:        BANKRUPTCY        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        SIR THOMAS BINGHAM MR, STEYN AND HOFFMANN LJJ        

Hearing Date(s):        6, 26 JULY 1993        

Insolvency – Appeal – Locus standi – Appeal by bankrupt personally – Bankruptcy petition founded on unsatisfied judgment – Bankrupt wishing to appeal from judgment on which petition founded – Whether bankrupt having locus standi to pursue appeal in own name – Whether leave to appeal should be granted to bankrupt – Insolvency Act 1986, s 285(3).

In two separate appeals the question arose whether a bankrupt was entitled to pursue an appeal from the judgment on which the bankruptcy order was founded or whether it had to be brought in the name of his trustee. In the first appeal judgment was given against the applicant, H, ordering him to pay damages to the defendants on their counterclaim. In the second appeal judgment was given against the applicant, S, ordering him to pay the defendants’ costs. When both applicants failed to satisfy the judgments bankruptcy petitions were presented and they were adjudicated bankrupt. A trustee in bankruptcy of H’s estate was appointed but no appointment had been

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made in S’s case. The applicants wished to appeal from the judgments on which their bankruptcy orders were founded, although H’s trustee did not wish, or was not in a position, to do so. Both H and S applied for leave to appeal, contending that they, as opposed to their estates, had an interest in the proceedings, because if they could have the judgments set aside they would be in a position to have the bankruptcy orders annulled on the ground that they should never have been made.

Held – The general principle in bankruptcy was that, following the vesting of the bankrupt’s estate under s 306 of the Insolvency Act 1986 in his trustee when appointed, the bankrupt was divested of, and ceased to have an interest in, either his assets or his liabilities, and, by virtue of s 285(3)a of that Act, after the making of a bankruptcy order creditors had no remedy against the property or person of the bankrupt in respect of any debt provable in the bankruptcy. Furthermore, in principle a bankrupt could not appeal in his own name from a judgment against him which was enforceable only against the estate vested in his trustee. However, a bankrupt was entitled to bring an action, eg for defamation or assault, which was personal to him and to defend an action seeking relief, such as an injunction, against him personally and to appeal from an adverse judgment in such proceedings. In the case of an appeal from the judgment on which a bankruptcy petition was founded the general principle applied that the bankrupt was divested of any interest in the proceedings and had no locus standi to appeal from a judgment against him which was enforceable only against the estate vested in his trustee. Accordingly both applications for leave to appeal would be refused (see p 696 j, p 697 b to e, p 698 h j, p 699 b j, 700 c to e, p 701 b c f j to p 702 a, post).

Rochfort v Battersby (1849) 2 HL Cas 388 and Dence v Mason (1879) 41 LT 573 applied.

Notes

For actions pending by or against a bankrupt, see 3(2) Halsbury’s Laws (4th edn reissue) para 428, and for cases on the subject, see 5(1) Digest (2nd reissue) 135, 8590–8592.

For the Insolvency Act 1986, ss 285, 306, see 4 Halsbury’s Statutes (4th edn) (1987 reissue) 928, 947.

Cases referred to judgment

Beckham v Drake (1849) 2 HL Cas 579, 9 ER 1213.

Benfield v Solomons (1803) 9 Ves 77, 32 ER 530, LC.

Boaler v Power [1910] 2 KB 229, CA.

Debtor, Re a, ex p Peak Hill Goldfield Ltd [1909] 1 KB 430, CA.

Dence v Mason (1879) 41 LT 573, CA.