The Gazette 1971

Their Lordshins so held when dismissing a prosecutor's appeal from Oswestry justices' dismissal in January of an infor- mation charging D. K. Barker, a dentist, with contravening regulation 95 of the Motor Vehicles (Construction and Use) Regulations, 1969, and Section 64 (2) of the Road Traffic Act, 1960. [Evers v Barker; The Times, 21st May 1971.] The Court allowed an appeal by R. J. Souter against his conviction at Hampshire Quarter Sessions (deputy chairman: Mr. John Hall, Q.C.) last June of permitting the living room in a house occupied by him in Famborough to be used for smoking cannabis, contrary to Section 5 of the Dangerous Drugs Act, 1965, on the ground of misdirection. Leave to appeal was granted by Mr. Justice Browne because of the deputy chairman's direction regarding the connotation of "permitting". [Regina v Souter; The Times, 25th May 1971.] The House of Lords is to consider the question whether it is open to a jury trying a joint charge, to which one defendant has pleaded guilty, to convict the remaining defendant of committing independently the offence which is the subject matter of the joint charge. [Regina v Merrimer; The Times, 18th May 1971.] The convictions of a German national for making a customs declaration that was untrue in a material particular and for failing to declare a car were quashed because he was resident outside the United Kingdom although he had spent less than 365 days outside the United Kingdom during the 24 months immediately before his entry. [Brokelmann v Barr; The Times, 20th May 1971.] When a doctor in a hospital is asked by a police officer whether a patient who has been driving is capable of providing a specimen for the purposes of the Road Traffic Act, 1967, he must also be told that the patient will be warned of the pos- sible consequences of refusal under Section 3 (10)—impris- onment, a fine and disqualification—as such a warning might adversely affect his health. [Regina v Knightley; The Times, 8th May 1971.] A driver who was disqualified for six months on pleading guilty to driving with excess alcohol in his blood contrary to Section 1 (1) of the Road Safety Act, 1967, appealed success- fully against the disqualification order. The Court allowed an appeal by J. A. Shippam, aged 22, of Welling. Kent, who was ordered to be disqualified at South-Blast London Quarter Sessions (deputy chairman: Judge D. L. McDonnell) last December. The Lord Chief Justice said that it was odd that the disqualification was set at six months because, in the absence of special reasons, the minimum must have been three years in view of the appellant's record. If special reasons were present disqualification might have been avoided altogether. The exccss of alcohol in the appellant's blood was four milligrammes above the permitted statutory maximum of 80 milligrammes of alcohol in 100 millilitres of blood. He had been out with two friends, had been detailed as driver and all he had had was two half-pints of lager and lime. He had since discovered, and evidence was given, that one of the friends had laced his drink with a vodka and lime unknown to him. [Regina v Shippam; The Times, 21st April 1971.] A person does not steal if he takes a handbag intending merely to deprive its owner of such property as proves worth taking on examination and, finding it valueless to him, leaves it ready to hand to be repossessed by the owner. Nor can he be convicted of attempted theft if he is charged with stealing the handbag and the specific articles it contained. [Regina v Eason; The Times, 28th May 1971.] Damages The Court affirmed awards of damages to seven men who had contracted asbestosis over many years of work in lethal condi- tions in an asbestos factory. They also upheld a construction of Section 7 (3) of the Limitation Act, 1963, though Lord Justice Edmund Davies expressed strong doubts on the point, with the result that a person who contracts an insidious disease or suffers an injury with "slow manifestation" may have his time for bringing an action extended if he can prove, among other things, that until twelve months before he issued his writ, he did not know that the injury, though resulting from his

employers' negligence or breach of statutory duty, was attri- butable to what in law is called negligence or breach of duty. [Smith and Others v Central Asbestos Co. Ltd.; The Times, 27th May 1971.] An injured plaintiff, though always under a duty to do what is reasonable to mitigate loss, does not act unreasonably in failing to exercise a right to claim disablement benefit and special hardship allowance if the reason for the failure is ignorance of the right to claim. [Elay v Bedford; The Times, 5th May 1971.] Discretionary Trust His Lordship held that the decision of the House of Lords in the present case (1970, 2 W.L.R. 1110) meant that the test of validity to be applied to a discretionary trust in favour of a class of beneficiaries was precisely the same as that applicable to a power; that, accordingly, such a trust was valid if it could be said with certainty whether or not any given individual was a member of the class, but that it was not essential to be able to compile a complete list of all possible beneficiaries. The doubt as to whether or not the test laid down by the Court of Appeal in the Broadway Cottages case (1955, Ch. 20) had been rejected by the House of Lords was therefore removed. The House, having ruled upon the test to be applied, had remitted the case to the High Court for a decision as to the validity of the actual trusts. [In re Bader's Deed Trusts (No. 2); The Times, 26th May 1971.] Extradition The House of Lords dismissed an appeal by Gerald Fernandez, secretary and manager, legal affairs, of the Malaysia-Singapore Airlines Ltd., in Singapore, from 1963 to 1968, from the refusal of the Queen's Bench Divisional Court (Lord Parker, then Lord Chief Justice, Mr. Justice Melford Stevenson and Mr. Justice Cooke) ( The Times, February 6th) of his applica- tion for an order of habeas corpus arising out of extradition proceedings brought against him under the Fugitive Offenders Act, 1967. The request for his return was made by the Singapore Government and he was arrested on a provisional warrant at London Airport on 19th October 1970 when he arrived from the Irish Republic with a ticket for Kuala Lumpur, Malaysia. Committal proceedings were heard by the metropolitan stipen- diary magistrate last December and he was committed to custody in Pentonville Prison to await his return to Singapore. TFernandez v Singapore Government; The Times, 26th May 1971.] Family The Court, taking into account the overall position in a mar- riage which had broken down, upheld a finding by the registrar that a former wife who had been earning nearly as much as her husband when they bought the matrimonial home and who contributed to the initial cash payment and paid for "substan- tial improvements" to it, within the meaning of Section 37 of the Matrimonial Proceedings and Property Act, 1970, was entitled to a half share in the property although it was in the husband's name and he had paid the mortgage instalments. Lord Justice Stamp expressed his doubts but did not dissent from the conclusion. [Davis v Vale; The Times, 28th May 1971.] Ait order made by justices giving a father access to his three children on condition that they had no contact with the woman with whom he was living was varied. Their Lordships granted permission for the woman to be present when the children visited the father for the day, but upheld the justices' decision forbidding her to be present between 8 p.m. and 10 a.m. when the children stayed overnight. [G. v G.; The Times, 7th May 1971.] See under Property; Williams v Williams; The Times, 8th April 1971. Gaming and Lotteries An advertisement of a notice issued on behalf of a club that application had been made to a gaming licensing committee for a gaming licence contained more details than were required under the Gaming Act, 1968, and, therefore, the committee's decision that they had no jurisdiction to hear the application was correct in law. [Regina v Leicester Gaming Licensing Committee; ex parte Shine and Another; The Times, 27th May 1971.]

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