The Gazette 1972

CURRENT LAW DIGEST SELECTED In reading these cases note should be taken of the differences in English and Irish Statute Law. Court Evidence

The House of Lords so held in allowing an appeal by Robert Lambie from the Queen's Bench Divisional Court ithe Lord Chief Justice and Mr. Justice Lawson, Mr. Justice O'Connor dissenting) {The Times, 22 July 1971, [1972] RTR 36), which had held on an appeal by the prosecution from Reading justices that in considering whether or not to impose a driving disqualification on Mr. Lambie for a third speeding offeiu-e within three years, to which he pleaded guilty in January 1971, the justices had wrongly allowed him to adduce evidence show- ing that two previous speeding offences of which he had been convicted in 1968 were trivial. [Lambie v Woodagc; House of Lords (1972) 1 A.E.R. 462] Riparian factory owners whose pumping system became ob- structed by autumn leaves and bracken, as a result of which polluting matter got into the River Irwell, lost their appeal when the House of Lords dccidcd that the oiTencc of causing polluting mattert o enter a stream, contrary to Section 2 (1) (a) of the Rivers (Prevention of Pollution) Act, 1951, could be committed by a person who had no knowledge of the fact tliat such matter was entering the stream and had not been negli- gent in any relevant respect. TAlphacell Ltd. v Woodward: House of Lords (1972) 2. A.E.R.] Money accepted by a travel agent from customers towards payment for air trips to America was held not to put him under an obligation to deal with the money in a particular way within the meaning of Scction 5 (3) of the Theft Act, 1968, even though no holiday was provided and no money refunded. The Court allowed an appeal by G. Hall, Manchester, against his conviction at Manchester Crown Court (Mr. Com- missioner D. Bailey) last September on seven counts of theft of money received as deposits or payment for the trips and quashed his two-year sentence. [Regina v Hall; C.A.; 5/5/1972.] A driver who would only agree to a doctor taking a specimen of blood from his finger was held to have been properly con- victed of failing without reasonable excuse to provide a speci- men for a laboratory test in pursuance of a requirement under Section 3 of the Road Safety Act, 1967. [Rushton v Higgins; Q.B.D.; 10/5/1972.] Their Lordships laid down the test to be applied by a Court when considering whether allegations of an offence charged in an indictment expressly included an allegation of "another offence" within Section 6 (3) of the Criminal Law Act, 1967. The Court is to apply the "red pencil test"—striking out of the indictment all the averments which had not been proved. If the striking out left particulars of another offence within the jurisdiction of the Court of trial when the accused can then and there defend, the judge can and should ask the jury to consider whether the other offence has been proved. [Regina v Lillis; C.A.; 16/5/1972.] The Court of Appeal (Lord Justice Stephenson, Mr. Justice Cusack and Mr. Justice Forbes) gave leave to appeal to the House of Lords on the question "whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by importing it into England is a conspiracy which can be tried in England'. [Regina v Doot; Court of Appeal; 10/5/1972)] Vhen the defence to a charge of murder is that the person charged was provoked so that the offence is to be reduced to manslaughter, the jury should be instructed to consider the relationship of his acts to the provocation on asking themselves whether it wat enough to make a reasonable man do as he did. [Regina v Brown; C.A.; 16/5/1972.] The House of Lords reviewed Pinner v Everett—(1969) 3 A.E.R. 276 and some of its members raised doubts as to the validity of dicta in that case when they held that where a susp'cio* arose that a person driving a vehicle had alcohol in his bodv, that person, if immediately pursued by a suspecting constable in u< iform, might be required to provide a breath specimen for a test, although at the end of the pursuit he

In an appeal stated by the Lord Chief Justice to involve a point of considerable constitutional importance, the Queen's Bench Divisional Court laid down rules for justices in a crim- inal case when police apply for an order for inspection cf a defendant's bank account under Section 7 of the Bankers' Books Evidence Act, 1897. [Williams and Others v Summerfield; Q.B.D.; 18/5/1972.] Charity The Court of Appeal (Lord Justice Buckley and Mr. Justice Plowman, Lord Justice Russell dissenting) dismissed an appeal by the Attorney General from the order of Sir John Penny- cuick, the Vice-Chanccllor ( The Times, 22 May 1971), that the Construction Industry Training Board was entitled to be registered as a charity under Section 4 of the Charities Act, 1960. As a registered charity the board will not be liable to Selective Employment Tax. It was conceded that the board had been established for exclusively charitable purposes and the question was whether it came within the second part of the definition of "charity"' in Section 45 of the Act: "and is subject to the control of the High Court in the exercise of the Court's jurisdiction with respect to charities". [Construction Industry Training Board v Attorney-General; 22/4/1972.] Conflict of Laws The premises of an embassy or consulate in England are on Eng]ish soil and cannot be regarded as forming part of the foreign state, His Lordship held when giving reasons for deciding yesterday that the English courts could not recognise a talaq divorce obtained at the consulate general of the United Arab Republic in London by an Egyptian national domiciled in England. The Court was deciding a preliminary point in a divorce suit brought by Mrs. M. I. Radwan of Finchley, who petitioned on the ground of her husband's cruelty and claimed that he had obtained a decree of divorce by talaq at the consulate general of the United Arab Republic on 1 April 1970. [Radwan v Radwan; Family Division; 11/5/1972.] A proposed action against Mr. R. L. Bradshaw, Premier of St. Christopher, Nevis and Anguilla, in respect of an alleged libel in a pamphlet published by him in London should be tned in England rather than in St. Kitts because not only was the primary publication here but it was better that the trial should be held in the more remote and detached atmosphere of England. [Boon v Bradshaw; C.A.; 18/4/1972.] Crime The Court of Appeal (Lord Justice Cairns, Mr. Justice Nield and Mr. Justice Croom-Johnson), dismissing appeals by J. P. Bcntham and K. N. A. Baillie against conviction for possessing firearms with intent to endanger life contrary to Section 16 of the Firearms Act, 1968, certified that a point of law of general public importance was involved in the decision. The point was "whether the words in Scction 16, aa amended by Section II of the Criminal Damage Act, 1971, T" is an offence for any person to have in his possession any firr arm or ammunition with intent by means thereof to endange> life' should be so construed as to require proof by the prose- cution of a present and unconditional intent to endanger life". [Regina v Bentham; C.A.; 22/4/1972.] Where a motorist has two previous convictions for driving offences endorsed on h : s licence and is convicted of a third within three yean, the magistrates in considering whether he should be disqualified from driving, under the "totting-up" provisions of Section 5 (3) of the Road Traffic Act, 1962, are entitled in law to admit evidence by him about the circum- stances attending the previous convirtions as o'cumstancci to which the Court may have regard as mitigating the normal consequences of the third conviction.