Law Weblog

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

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

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

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

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

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

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

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

Cannabis is still 100% illegal.

R v Rowland [2003] CA

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

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

Referring to the second element as objective is not helpful.

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

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

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

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

Guilty of manslaughter not murder

DEFRA v Asda (2003) HL – below standard vegetables

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

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

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

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

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

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

Case here

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

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

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

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

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

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

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

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

Guilty
WLR report here

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

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

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

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

Briggs, R v (2003) CA

[Theft – appropriation does not include obtaining by deception]
D deceived elderly relatives into making a payment to her during their house move, whereby she (and her father) obtained title to the new property.

Held: D did not appropriate an item if by fraud she induced the owner to part with that item. R v Naviede [1997] was relied on.

If this were not the case there would be little need for many of the deception offences as many acts of deceptive conduct would be covered by theft, and the word “appropriation” connoted a physical act rather than a more remote action triggering the payment which gave rise to the charge.

Not guilty

R v Bentham (2003) CA Statutory Interpretation – the Purposive Approach

[Statutory Interpretation – the Purposive Approach]
D robbed A, whom he believed owed him money. A was still in bed. The defendant pointed his finger, covered by his jacket at A and demanded “every penny in the house”.  A believed his fingers were a gun.

Held: A purposive approach had to be adopted.  Section 17 of the Firearms Act 1968 was clearly designed to protect the victim confronted with what he thought was a firearm. It did not matter whether it was a plastic gun or a biro or simply anorak material stiffened by a figure. If it had the appearance of a firearm the jury were entitled to find the offence made out. 

Guilty

Lagden v O’Connor (HL) the impecunious claimant.

[Tort – remedies – impecunious claimant]
D struck C’s car. C being impecunious (poor) had to hire a car from a car hire company that charged more for the credit involved because C could not pay “up front”. This arrangement was more expensive than one hired in the normal way, which C could not afford to do. Since 1933 the rule in Liesbosch Dredger case would not allow a defendant to suffer because of an impecuniosity of the claimant.

Held: The Liesbosch Dredger must now be regarded as overtaken by subsequent developments in the law.

C won
Whole cases here.

R v Cannings [2003] CA Miscarriage of Justice

10 December 2003
Angela Cannings had her conviction of the murder of two of her children, seven-week-old Jason in 1991 and 18-week-old Matthew in 1999 overturned by the Court of Appeal because it was unsafe. 

Ms Cannings, 40, a former shop assistant, has lost three children through Sudden Infant Death Syndrome (SIDS), or cot death. 
SIDS was the cause of death after Ms Cannings’ first child, Gemma, who died at the age of 13 weeks in 1989. 
Ms Cannings has one surviving daughter, who was born in 1996.

News report, here