The defendant appealed against his conviction for driving with excess alcohol, saying that the intoximeter used had not received type approval as required.
Court: AdmnFiled under Road Traffic
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal correctly directing itself on the law could reasonably have reached the conclusion under appeal.’ Lord Griffiths said: ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. . where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to be firmly established that the question of whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. At first sight it seems rather strange that this should be so, for whether or not a certain set of facts should be classified under one legal head rather than another would appear to be a question of law. . [but] in O’Kelly v. Trusthouse Forte Plc. [1984] Q.B. 90 the Court of Appeal . . held that whether or not a waiter was employed under a contract of employment within the meaning of the Employment Protection (Consolidation) Act 1978 was a question of mixed fact and law, and that the finding of an industrial tribunal on this issue, from which an appeal lay on a point of law only, could only be impugned if it could be shown that the tribunal correctly directing itself on the law could not reasonably have reached the conclusion under appeal.’ and
‘Their Lordships conclude that reliance upon these two dicta culled from cases of a wholly dissimilar character, may have misled the courts below in their assessment of the facts of this case and amount in the circumstances to an error of law justifying setting aside what are to be regarded as concurrent findings of fact.
Their Lordships are further of the opinion that the facts of the present case point so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, to quote the words of Viscount Simonds in Edwards v. Bairstow [1956] A.C. 14, 29, `a view of the facts which could not reasonably be entertained’ and is to be regarded as an error law.’
Filed under Commonwealth, Employment
The defendants appealed against the imposition on them of serious crime prevention orders under section 19 of the 2007 Act.
Held: The appeals failed. To make the order, the court must satisfy itself that it had reasonable grounds to believe that the order would provide public protection by preventing, restricting or disruption the involvement of the defendants in serious crime as defined. Inevitably that judgment looked to the future, and the court must find a real or significant risk, and not just a bare possibility that the order would have that effect. A general anticipation of public benefit was insufficient. The sentence did not form part if any punishment, and its imposition required strict compliance with the section.
Filed under Criminal Sentencing, Human Rights
(Hong Kong) The defendant was chief accountant in a bank. He caused to be made false entries to fail to reflect the dishonouring of substantial cheques. He was charged alone on an allegation of conspiracy. His defence was that he merely obeyed the instructions of others to prevent a run on the bank.
Held: Once he had acted as he did, any motive was irrelevant. His appeal failed. As to the meaning of conspiracy to defraud, it required that the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.
Filed under Commonwealth, Crime
The driver left an accident. The police entered his home unlawfully, and on his refusal to supply a breath test, he was arrested and charged with faiing to supply.
Held: A lawful arrest is not an essential requirement before a breath test, and there was no general principle that there could be no conviction under section 6(1) if the evidence by which it was sought to prove the offence had been obtained unlawfully; On the true construction of section 10(2), the admissibility of a specimen of breath, blood or urine in proceedings for an offence under sections 5 or 6 depends on the procedure prescribed by the new section 8 for obtaining such a specimen having been correctly followed.
Lord Fraser of Tullybelton stated: ‘It is a well established rule of English law, which was recognised in Reg. v. Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally.’
Filed under Criminal Evidence, Road Traffic
The former wife sought leave to appeal against an ancillary relief order made by consent. The husband did not attend.
Held: The new rules intended to align family procedures with the CPR as applies for appeals to the Court of appeal. ‘The test on granting permission to appeal is set out in rule 30.3(7) and is this: permission to appeal may be given only where (a) the court considers the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard.’ It was granted in this case.
Filed under Family
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had warned them that in the absence of them signing the register there, no wedding would have taken place. It was not signed.
Held: The parties were not married despite the words of the service, and proclamation of the marriage at the end. Neither partner nor clergyman thought a wedding was taking place. The ceremony had failed to satisfy the local law requirements.
‘it is not . . either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.’
Filed under Family
The Union complained that the defendant operators of a web-site had permitted the sale of its tickets at far above their face value. The Court considerer whether it was proper to make a Norwich Pharmacal order which would entail the disclosure of personal data contrary to the Data Protection Directive and the 1998 Act.
Held: It would generally be proportionate to make an order revealing the identity of arguable wrongdoers. Longmore LJ said that there could be no reasonable expectation of privacy in respect of data which reveal such arguable wrongs. The respondent’s own conditions of business pointed out to their customers that their may be circumstances in which their personal data will be passed on to others. The requirement of disclosure of a limited amount of personal data was proportionate because there was no other way in which arguable wrongdoing could be exposed: ‘In this case, as in many other Norwich Pharmacal cases, necessity and proportionality may go hand in hand’.
Filed under Contract, Information, Litigation Practice
EAT JURISDICTIONAL POINTS: Worker, employee or neither
Can a partner in a limited liability partnership be an employee? The EAT decided that on the facts of the case the Appellant was a partner in a limited liability partnership and not an employee. Appeal dismissed.
Birtles J said: ‘Parliament has thus expressly provided that the legal test which determines whether a person is a partner or an employee of a partnership also determines whether a member of an LLP is employed by the LLP. ‘ The employment tribunal had correctly concluded that: ‘(i) Section 4(4) of the Limited Liability Partnership Act is the starting point. That is that a member of an LLP, such as the Claimant, shall not be regarded for any purpose as employed by the LLP unless, if he and the other members were partners in the partnership, he would be regarded for that purpose as employed by the partnership.
(ii)’The ‘any purpose’ and ‘that purpose’ must be regarded in this case as a reference to the Claimant’s work as chief investment officer, and we have to ask ourselves whether if this was a partnership in the normal sense, presumably under the auspices of the Partnership Act 1890, the Claimant’s role as CIO would be regarded as employment.’
Filed under Company, Employment
The court examined the provisions distinguishing between sentences of imprisonment for life and imprisonment for public protection (IPP) in cases involving very serious gun and drugs crimes.
Held: The Avis case guidelines remained valuable, but this case involved the large scale importation and distribution of firearms and new statutory provisions. The references to indeterminate sentences in that case referred to different sentencing provisions. IPP may be imposed following conviction for any specified offence which would otherwise carry a maximum sentence of 10 years’ imprisonment. Therefore one of its distinguishing features is that it permits a defendant’s incarceration to extend beyond what would otherwise be the lawful maximum for the offence. However the availability of this sentence is also subject to restrictive conditions which do not apply to discretionary life imprisonment.
The sentences for importation of guns should be no less than for the importation of drugs.
Lord Judge CJ said: ‘The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.
The purposes of sentencing are identified in section 142 of the 2003 Act. None of these purposes is pre-eminent. All apply to every case, but as a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.’
Filed under Criminal Sentencing
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