Case Summaries: 15 February 1999

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

Sentencing

R v Simmonds; CA, Crim Div (Henry LJ, Mitchell J, Judge David Mellor) 22 Jan 1999.

Whilst the culpability or criminality of a defendant, particularly in relation to carelessness while driving, remained the primary consideration in determining sentence, the court was entitled when dealing with an offence which had led to a death to bear that death in mind. Although the decision in R v Krawec [1984] 6 Cr App R (S) 367 was clearly valid in its context and its time, it was not of assistance to sentencing courts operating in the current statutory framework.

David Mason (Weightmans, Birmingham) for the appellant.

Crime

R v Law; CA (Crim Div) (Swinton Thomas LJ, Tucker, Penry Davey JJ) 1 Feb 1999.

Section 5(1)(a) of the Firearms Act 1968, which provided that an offence was committed where a person was in possession of "any firearm which is so designed or adapted that two or more missiles can be successively discharged without repeated pressure on the trigger", did not require consideration of the subjective intention of the designer or adaptor as to the use of the firearm. In construing the section, assistance was not provided either by the authorities or the dictionary definition of the word "design".

Mark Harris (Wainwright & Cummins) for the appellant; Geraint Walters (CPS) for the Crown.

Privilege

R v Manchester Crown Court, ex p R; QBD, Div Ct (Lord Bingham CJ, Brian Smedley J) 2 Feb 1999.

Neither a solicitor's business diaries nor his appointment and attendance records attracted legal professional privilege as defined in s 10 of the Police and Criminal Evidence Act 1984 as they were not communications made for the purpose of giving and receiving legal advice. In order to determine whether documents fell within the section it was necessary to consider the function and nature of the documents sought.

Timothy King QC, Ahmed Nadim (Kristina Harrison, Salford) for the applicant; L Clement Goldstone QC, Adrian J Farrow (CPS) for the Crown.

Drug trafficking

Commrs of Customs & Excise v Harris; QBD, Div Ct (Brooke LJ, Forbes J) 29 Jan 1999.

Where cash had been detained under s 42(2) of the Drug Trafficking Act 1994 but forfeiture had not yet been ordered, the magistrates' court had no jurisdiction to direct its release to enable the accused to meet his legal expenses. In the absence of any statutory power or ambiguity in the legislation, there was no proper basis for extending the magistrates' power to order the release of lawfully detained cash.

Andrew Bird (Solr for C&E) for the commissioners; Joel Clompus (Saunders & Co) for the respondent.

Consumer protection

Thomson Tour Operations Ltd v Worcestershire County Council; QBD, Div Ct (Brooke LJ, Forbes J) 26 Jan 1999.

Section 20(1) of the Consumer Protection Act 1987, being expressed in the present and not the future tense, was intended to create criminal liability for indications of price which were misleading at the time the representation was made, not representations which might become misleading at a later date.

Raymond Walker QC, Philip Galway-Cooper, Stephen Mason (solicitor advocate) (Mason Bond, Leeds) for the appellants; Andrew Wallace (Legal Dept, Hereford and Worcester County Council) for the respondent.

VAT

Maharani Restaurants v Commrs of Customs and Excise; QBD, Crown Office List (Turner J) 25 Jan 1999.

There was no principle to be found in r 19(3) of the Value Added Tax Tribunal Rules 1986 that an appellant was entitled to bring an appeal in the way most advantageous to himself. Justice had to be done to an appellant and to a respondent, and the court or tribunal called on in relation to a dispute between two parties should be able to do so in a way in which it could be seen to be consistent and fair to both parties. Accordingly, a decision of the VAT tribunal to hear appeals concerning two restaurants together, because three of the four individuals involved in the businesses were the same and the manner in which the tax had allegedly been evaded was similar, could not be impugned.

David Southern (Sykes Anderson) for the taxpayer; Eamon McNicholas (Solr, C&E) for the commissioners.