Case Summaries 21 December 1998

THE FOLLOWING notes of judgments were prepared by the reporters of the All England Law Reports.

Release dates

R v Governor of Wandsworth Prison, ex p Sorhaino; QBD (Div Ct) (Simon Brown LJ, Astill J) 14 Dec 1998.

TIME SPENT in custody on remand for offence B, whilst also detained pursuant to a magistrates' court sentence for offence A, was not to be counted towards the serving of the sentence of imprisonment for offence B when the sentence for offence A was quashed on appeal before the defendant had been sentenced to imprisonment for offence B. A sentence once quashed was not void ab initio; during the period of sentence A, therefore, the applicant was not in prison "only" by reason of an order of a court made in connection with any proceedings related to sentence B, as would be required by s 67(1A) of the Criminal Justice Act 1967 were that period of time to count towards sentence B.

Peter Duffy QC, Rambert de Mello (Goodall Barnett James, Brighton) for the applicant; Eleanor Grey (Treasury Solicitor) for the respondent.

Road traffic

DPP v McCarthy; QBD (Div Ct) (Simon Brown LJ, Astill J) 14 Dec 1998.

A DRIVER having been required to stop following upon a road traffic act accident as defined by s 170(2) of the Road Traffic Act 1988 might give the address of a third party provided the address fulfilled the purposes of the section, which was to enable easy and swift communication between the parties to the accident.

James Maxwell-Scott (E. Edwards Son & Noice, Ilford) for the appellant; John McGuinness (CPS, Wood Green) for the prosecution.

Evidence

McCauley v Hope (Carryl, third party); CA (Butler-Sloss, Potter LJJ, Sir Patrick Russell) 8 Dec 1998.

WHERE A a plaintiff injured in a road traffic accident sought, in proceedings against the defendant, to rely on the defendant's conviction of driving without due care and attention, the plaintiff was not entitled to judgment under RSC Ord 14. The defendant, although admitting the conviction, alleged in reliance on an expert's report that it was erroneous. Section 11(2) of the Civil Evidence Act 1968 provided the clearest possible mandate to a defendant in a road traffic accident case to attack his earlier conviction, provided he had some good cause for so doing, and could discharge the burden of proof to the civil standard. The Ord 14 process was inappropriate in such a case since there were serious issues to be tried.

Elizabeth Gumbel (David Saunders, Ashford) for the plaintiff; Ian McLaren QC, Douglas Herbert (E. Edwards Son & Noice, Ilford) for the defendant.

Discovery

Dubai Aluminium Co Ltd v Al Alawi & ors; QBD, Commercial Court (Rix J) 3 Dec 1998.

Criminal or fraudulent conduct undertaken for the purposes of litigation fell on the same side of the line as advising on or setting up criminal or fraudulent transactions yet to be undertaken, as distinct from from the entirely legitimate professional business of advising or assisting clients on their past conduct, however iniquitous. Documents and reports generated by such criminal or fraudulent conduct which were relevant to issues in the case were, accordingly, discoverable, falling outside the legitimate area of legal professional privilege.

Mark Pelling (Warner Cranston) for the plaintiff; Clive Freedman QC, Alana Gourgey (Philippsohn Crawfords Brewald) for the first defendant.

Sentencing

R v Baker; CA (Crim Div) (Pill LJ, Turner J, Judge Rant QC) 15 Dec 1998.

When imposing a sentence longer than one commensurate with the seriousness of the offence in question in order to protect the public from serious harm from an offender, pursuant to s 2(2)(b) of the Criminal Justice Act 1991, the power of the court to order sentences to run consecutively was not limited. The expression "maximum permitted sentence" applied to the sentence for an individual offence, and provided that did not exceed the permitted maximum, there was no obstacle to aggregating other sentences which did not exceed that maximum. Moreover, there was no obstacle to exercising the power under s 2(2)(b) in an individual sentence imposed consecutively to another sentence on which that power had been exercised.

Michael Thoka (Registrar of Criminal Appeals) for the appellant; Brian Altman (Treasury Solicitor) as amicus curiae.