Sentence – Culpability. The instant case was not a clear case that could be categorised by the factor 'a significant degree of planning' as determinative of culpability, but the defendant's pursuit of the victim had been significant in a different way. The Court of Appeal, Criminal Division, in dismissing the appellant's appeal against an extended sentence of 15 years' imprisonment, held that, while the sentences imposed would be regarded as being at the very highest end of the range, they were not manifestly excessive.
Extradition – Right of retrial. Where an individual had been convicted, but that conviction was not final because he had an unequivocal right to a retrial after surrender, he was correctly classified as a convicted person, not an accused person, pursuant to s 14 of the Extradition Act 2003, for the purposes of considering the 'passage of time' bar to surrender. The Supreme Court further held that art 8 of the European Convention on Human Rights provided an appropriate and effective alternative means of addressing passage of time resulting in injustice or oppression in cases where the defendant had been convicted in absentia.
Sentence – Young offender. The judge's approach could not be seriously criticised and the sentence passed of 9 years' detention in a young offender institution for manslaughter committed when he was 17 could not be described as manifestly excessive. The Court of Appeal, Criminal Division, in dismissing the defendant's appeal, rejected his contention that the judge had failed to give adequate weight to the overarching principles as set out in the guideline for children and young people.
Civil procedure – Order for inspection of documents – Recall of order. Court of Session: In an application in which the noter sought recall of order for inspection of documents, granted on the ex parte application of the petitioner in proceedings for that purpose under s 1 of the Administration of Justice (Scotland) Act 1972, on the basis of a failure to disclose material information to the court at the time of the grant of the order, the court refused the motion for recall in relation to the grounds in the petition which were unaffected by the nondisclosure and put the matter out for a further hearing confined to consideration of that part of the motion that remained (ie that part of the petitioner's case to which the nondisclosure related).
Misrepresentation – Fraudulent misrepresentation. The claimant's claim failed, in a dispute concerning the purchase of the Spanish headquarters of the Santander bank. The Commercial Court held that the Royal Bank of Scotland which, along with the defendant banks, had helped to finance the purchase, had not made false representations concerning the integrity of the process of setting EURIBOR on its own account and as agent for the defendants. The defendants were entitled to declarations that they had acted lawfully.
Environmental protection – Road and adjacent land – Litter abatement order. Sheriff Court: In an action in which the pursuer asked the court to make a litter abatement order in relation to an 6.8-mile stretch of the A96 dual carriageway in Aberdeenshire, the court was not satisfied that the pursuer had proved his case with regard to the area to which his complaint related, namely the entire 6.8-mile stretch of road and on that basis it refused his crave for a litter abatement order: and in any event the defenders had proved that it was not practicable for them to comply with their duties under s 89(1) and (2) of the Environmental Protection Act 1990 with regard to the entirety of that stretch of road at all times.
Immigration – Asylum – Human rights – Removal from UK to Bulgaria – Inhuman or degrading treatment. Court of Session: Allowing a reclaiming motion in judicial review proceedings in which a Syrian asylum seeker challenged the Home Secretary's certification that his claim that returning him to Bulgaria would breach his right not to be subjected to inhuman or degrading treatment was clearly unfounded, the court concluded that the Lord Ordinary had erred in refusing the petition and holding that there was insufficient evidence from which a First-tier Tribunal would be entitled to conclude that if the petitioner were returned to Bulgaria there were substantial grounds for believing that there was a real risk that the conditions there would amount to a violation of his rights under art 3 of the European Convention on Human Rights: on the basis of the information before the Lord Ordinary there was information sufficient at least to raise a case to be tried as to whether the enforced return of the petitioner to Bulgaria would violate his art 3 rights, and the court was not persuaded that he must necessarily fail.
Sentence – Pre-sentence report. The judge should have obtained a pre-sentence report before proceeding to sentence the defendant to 12 months' imprisonment for an offence of affray to which he had pleaded guilty and the judge should have suspended the sentence. As the defendant had served six months' imprisonment, the Court of Appeal, Criminal Division, held that it would not be right to suspend the sentence so that the defendant had hanging over his head the prospect of re-imposition of the sentence should he re-offend and substituted a sentence of six months.
Financial Conduct Authority – Decision Notice. On the evidence, there was no reason to cast any doubt on the reasonableness of the Financial Conduct Authority's (the FCA) decision to refuse the applicant company's application for to carry on the consumer credit regulated activities of debt adjusting and debt counselling. Bearing in mind, among other things, the applicant's approach during the course of the application and thereafter, the FCA had been fully justified in concluding that it had been unable to ensure that the applicant had satisfied the Threshold Conditions set out in Sch 6 to the Financial Services and Markets Act 2000. Consequently, the Upper Tribunal (Tax and Chancery Chamber) dismissed the applicant's reference.
Family proceedings – Orders in family proceedings. The father's challenge to 12 findings of fact, which had been made in connection with cross-applications for child arrangements and specific issue orders relating to his children, was unsuccessful. The Family Division held that the recorder had conducted an extremely thorough and detailed evaluation of the evidence, including an allegation of the sexual abuse of one of the children (S), and he had also identified the father's case that S had, in effect, been sent into interviews with a script of lies in order to discredit him. The court held that there was no evidence that the recorder had failed to take account of material evidence or that he had given undue weight to an area of evidence.
Environment – Waste. The screening of debris from sludge prior to storage was not an activity comprised within the exemptions set out in para 3 of s 2 of Ch 5 of Sch 3 to the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154. Accordingly, the Court of Appeal, Civil Division, dismissed the claimant company's application for judicial review of the defendant Environment Agency's guidance, stating that screening of sewage sludge without a suitable permit was an offence.
European Union – Freedom of movement. The provisions of the Agreement between the European Community and its Member States and the Swiss Confederation on the free movement of persons should be interpreted as precluding a tax regime of a member state which, in a situation where a natural person who was a national of a member state and who pursued an economic activity in the territory of the Swiss Confederation transferred his domicile from the member state whose tax regime was at issue to Switzerland, provided for the collection, at the time of that transfer, of the tax payable on unrealised capital gains with respect to shares owned by that national, whereas, if domicile was retained in that member state, the collection of the tax took place only at the time when the capital gains were realised, namely, on a disposal of the shares concerned. The Court of Justice of the European Union so held in a preliminary ruling in proceedings between the applicant and the German tax authority.
Building contract – Adjudication. An employer who was subject to an immediate obligation to discharge the order of an adjudicator based on the failure of the employer to serve either a payment notice or a pay less notice had to discharge that immediate obligation before he would be entitled to rely on a subsequent decision in a true value adjudication. Accordingly, the Technology and Construction Court disposed of the defendant employers' application to rely on a true value adjudication by way of set off or counterclaim and granted summary judgment for the claimant contractor to enforce an adjudicator's award in the sum of £106,160.84 plus interest.
Brexit – Company. In response to Brexit, the applicants, UBS Ltd and UBS Europe SE, purposed to transfer some of UBS Ltd's business to UBS SE under Pt VII s 106 of the Financial Services and Markets Act 2000. The Commercial Court, in allowing the application, considered, among other things, that the design of the scheme was one which struck an appropriate balance between the desirability of certainty to clients and business, on the one hand, and to the exigencies of transferring to a different jurisdiction, on the other.
Extradition – Prohibition on torture. The evidence as it had been presented before the judge had not established substantial or sufficient grounds for him to find it necessary to proceed to seek further information in the circumstances and it would not be just to admit, and not unjust to refuse to admit, fresh evidence. Accordingly, the Divisional Court dismissed the appellant's appeal against for his extradition to Italy to face prosecution for offences arising out of his alleged involvement in a criminal gang committing offences that included murder, exploitation and the facilitation of prostitution and burglary.
Judicial review – Human Trafficking. Court of Session: In judicial review proceedings in which a Chinese national sought reduction of a decision that she was not a victim of human trafficking from China to Denmark for the purposes of forced labour or sexual exploitation, the court rejected contentions that the decision-maker had erred in law by failing to apply the relevant guidance in certain specified respects and had erred in relation to the question of the petitioner's identity, holding that the decision-maker had not made any material error in law in reaching the decision complained of, which was reasonably open to her on the information before her.
Immigration – Asylum – Judicial review – Refusal of leave to appeal. Court of Session: Refusing a judicial review petition by a Nigerian national who challenged the Upper Tribunal (UT)'s decision refusing leave to appeal against the First Tier Tribunal (FTT)'s dismissal of her appeal against the refusal of her asylum claim, the court held that there was no substance to the petitioner's principal submission that the FTT had failed to consider the evidence 'in the round' and the UT was entirely correct to reject that ground of appeal as wholly without merit; and the other grounds on which the petitioner sought to challenge the UT's decision amounted to no more than attempts to reopen findings made by the FTT that were based on evidence before it and properly and adequately explained in its decision.
Bankruptcy – Trustee in bankruptcy. The Chancery Division held that the district judge had given adequate reasons for his decision to X, and that other claims relating to a BVI company to which the third appellant company had purportedly lent money fell within CPR 17.4 and could be considered as part of the claim.
Income tax – Emoluments from office or employment. It was well established that the purpose of an employer in granting a benefit to an employee was an important factor in determining whether it was properly to be regarded as a reward or return for the employee's services. Consequently, the First-tier Tribunal (Tax Chamber) had misdirected itself in treating the taxpayer company's intention as an irrelevant consideration in deciding whether the transactions in question had conferred a profit or benefit on the appellant employee that had derived 'from' his employment with the employer company. Accordingly, the Upper Tribunal (Tax Chamber) allowed the company and the employee's appeals against the assessments made by the Revenue and Customs Commissioners in relation to income tax in the employee's case, and for payment of primary and secondary Class 1 national insurance contributions in the company's case.
Shipping – Cargo. The defendant owners' appeal against the decision of arbitrators succeeded, in a case concerning the seizing of a cargo following the submission of false import documents. The Commercial Court considered the meaning of 'force majeure' in the circumstances and held that, in the present case, where the seizure of cargo by the local customs authorities at the discharge port had caused a delay to discharge, the time so lost caused by 'government interferences' was within the meaning of cl 28 of the Sugar Charter Party 1999 form.