The Gazette 1972

CURRENT L AW DIGEST SELECTED

court must consider with great care whether the accused will be prejudiced. [Regina v Johel; Regina v Rem; C.A.; 3/3/1972.] The Home Secretary has power under Section 29 (1) of the Criminal Justice Act, 1961, to direct that a person serving a prison sentence who wishes to conduct private litigation shall be taken to and from the court under escort but to require the prisoner to pay in advance or undertake to pay the estimated costs of producing him to the court and bringing him back to prison. Where the prisoner has the means to pay, the costs should not come out of public funds. [Becker v The Home Office; C.A.; 6/3/1972.] A real intention to buy furniture cannot be changed into an intention to buy carrots merely by describing the articles sold as carrots and the furniture as free gifts in a device to avoid the Sunday trading provisions of the Shops Act, 1950. Their Lordships so held when allowing a prosecutor's appeal in a test case from Matlock justices' dismissal of five infor- mations against Herbert Hardy and four other persons for opening a shop known as Direct Furnishing Supplies for the serving of customers on a Sunday last July, contrary to Section 47 of the Act. Section 47 prohibits Sunday opening subject to a proviso which enables articles including vegetables to be sold on Sundays. [Weller v Hardy; QBD; 14/3/1972.] A court trying a criminal case has a discretion to allow the prosecution to call fresh evidence after the close of its case and after some defence witnesses have been called. Such fresh evidence is not limited to evidence of a strictly rebutting character. [Regina v Doran; C.A.; 16/3/1972.] Discretionary Trust Their Lordships dismissed an appeal by the executors of Mr. B Baden (the settlor) from the decision of Mr. Justice Bright- man ( The Times , 26 May 1971; [1971] 3 WLR, 475) that a discretionary trust established by the settlor was not void for uncertainty. Clause 9 (a) of the trust deed directed the trustees "to apply the net income of the fund in making at their absolute discretion grants to or for the benefit of any of the officers and employees or ex-officers or ex-employees of Mathew Hall & Co. Ltd. or to any relatives or dependants of any such persons". [In re Baden's Deed Trusts; C.A.; 27/3/1972.] Dismissed for Want of Prosecution See under Time; Vaughan v F. Parnham Ltd.; C.A.; 28/3/72. Evidence See under Crime; Regina v Doran; 16/3/72. Family Where a spouse decides not to contest a divorce and then changes his mind after the time for service of an answer has expired, he must file an affidavit of merits showing his sincerity and that he is not seeking leave to defend as a tactical manoeuvre. [Spill v Spill; C.A.; 24/3/1972.] See under Successions; Millward v Sherton and Another; Ch. Div.; 24/3/1972. Their Lordships quashed a declaratory judgment as to the maximum discount figure which should be applied to reduce a wife's maintenance because of her past conduct, saying that it was neither permissible nor desirable. The court allowed an appeal by Mrs. M. Ackerman, Stevenage, from an order made by Sir G. Baker, now Presi- dent of the Family Division, last July ([1971] 3 WLR 725) for the payment by her former husband, Mr. D. J. Ackerman, Stevenage, of £ 3 a week maintenance, after the declaratory judgment in which he fixed the maximum discount figure at 25 per cent. [Ackerman v Ackerman; C.A.; 6/3/1972.] 135

In reading these cases note should be taken of the differences in English and Irish Statute Law

Company Megarry J. held that the Court has jurisdiction to make a winding-up order in the case of an unregistered company for the purposes of Part IX of the Companies Act, 1948, if there are assets within the jurisdiction to administer and persons concerned or interested in their proper distribution who are subject to the jurisdiction. [In re Compania Merabello San Nicholas SA; Ch. Div.; 21/3/1972.] Conflict of Laws The art world is so international today that it is not oppres- sive of a world-renowned art dealer living in France to have an action against him tried in England where the main issue is whether a painting of a female allegorical figure called La Poesie is or is not the authentic work of Francois Boucher, the eighteenth-century French painter. [Maharanee of Baroda v Wildenstein; C.A.; 10/3/1972.] Counsel's Undertaking Counsel can give undertakings for their clients only when they have received express authority, Watkins J. said when setting aside, on the application of a wife, orders he had made relating to maintenance for her and her two children on the ground that her counsel at the hearing had not been authorised to give certain undertakings on her behalf. [Marsden v Marsden; Family Div.; 21/3/1972.] Defamation Where there is uncertainty whether the defence of absolute privilege attaches to statements made at an investigation of a complaint against a police officer under the Police Act, 1964, and whether the occasion is absolutely privileged, that ques- tion should not be tried in advance as a preliminary issue of law but should be decided at the trial of the action itself. [Constable v Jegger; C.A.; 16/3/1972.] Crime A man who spent over 70 days in custody on remand for charges of which he was eventually acquitted must serve a prison sentence under a default warrant issued nine days after he had been taken into custody but not executed until after his acquittal. , [Regina v Leeds Prison Governor ex parte Huntley; QBD; Div. Ct.; 28/3/1972.] See under Licensing; Howker v Robinson; QBD; 21/3/1972. When the prosecution wish to use tape recordings in evidence against a defendant who objects that they ought to be excluded unless they are shown to be originals in accordance with the best evidence rule, the trial judge has to decide whether the prosecution makes out a prima facie case of orig- inality. He does not have to hear and weigh other evidence which might controvert the prima facie case, and if he were to do so he might be trespassing on the ultimate function of the jury. [Regina v Robson; Regina v Harris; Central Criminal Court; Shaw J.; (1972) 116 S.J. 313.] The prosecution must take all reasonable steps to secure the a ttendance of any of their witnesses who are not the subject of. a conditional witness order or whom the > defence might reason- ably expect to be present. If, however, it proves impossible^ to have the witnesses present, the court may in its discretion Permit the trial to proceed provided that no injustice is done. [Regna v Shaw; Regina v Cavanagh; C.A.; 9/3/1972.] No rule of law precludes the amendment of an indictment af ter arraignment, whether by adding a new count or other- Wise, but an amendment during trial is likely to prejudice the a ccused person and the longer the interval between arraign- ment and amendment the more likely is it that injustice will he caused. In every case in which amendment is sought the