Out of the crooked timber of Schedule 22, Finance Act 2003, no straight thing was ever made

On 3 February 2010, the Supreme Court released its first decision in a tax case: Grays Timber Products Limited v Her Majesty's Revenue & Customs [2010] UKSC 4.  The decision is of relevance to those who advise on arrangements for directors to own, or benefit from, shares in their companies, and provides welcome clarity for practitioners on the meaning of market value under Part 7 of the Income Tax (Earnings and Pensions) Act 2003 ("ITEPA").  Part 7 ITEPA was amended substantially by Schedule 22, Finance Act 2003 shortly after Royal Assent, and this is the first time that these notoriously complex provisions have been considered judicially.  It seems that their Lordships would not be too disappointed if it is the last time also, Lord Walker expressing the hope that "Parliament may find time to review the complex and obscure provisions".  [Read More]

Today's Guardian features an interview with Lord Bingham, talking about his new book The Rule of Law (published by Allen Lane on 4 February 2010 at £20).  In the interview Lord Bingham makes some interesting comments on the (il)legality of the Iraq war, amongst other things.  A review of the book by occasional UKSC Blog contributor Conor Gearty from the "Observer" can be found here.  We hope to publish a review on the UKSC Blog shortly.  [read more] 

A thick fog continues to surround the mysterious and slow moving appointment process for "Justice 12".  The fog is pierced, from time to time, by "revelations" to legal journalists from mysterious unidentified "sources". We have previously blogged Joshua Rozenberg's piece about the shortlist for the twelfth justice and his earlier explanations for the delays in the appointment process.  We have also written about reports by The Times legal correspondent, Frances Gibb that (unnamed) "senior" judges from the Court of Appeal opposed the appointment of Jonathan Sumption QC to the Supreme Court.  Mr Sumption subsequently withdrew from the competition (see our post here).  

Frances Gibb has now returned to the story with an extraordinary account of the twists and turns of the process, under the headline "Supreme ambition, jealously and outrage", dealing with what she describes as "the judicial bunfight that stopped an outsider from being appointed to the highest court".  Frances Gibb's story is, at first sight, a remarkable one. [read more]

There is only one appeal hearing listed next week. Lords Hope, Rodger, Brown, Kerr and Lady Hale will hear the appeal in R (on the application of SK Zimbabwe) v Secretary of State of the Home Department on 10 and 11 February. The case concerns a Zimbabwean national, SK, who was detained pending deportation (as he was considered a flight risk). SK sought judicial review of his detention on the basis that he was being unlawfully retained by virtue of the Home Department's failure to carry our regular reviews of his detention.  The case is previewed by Samantha Knights of Matrix here.  [read more]

This appeal is due to be heard on 10-11 February 2010 by a five judge bench (Lords Hope and Rodger, Lady Hale and Lords Brown and Kerr).  It will be a landmark decision in the area of unlawful detention and will resolve fundamental issues of importance in the area.  It concerns judicial oversight of executive deprivation of liberty, and the relationship between unlawful detention, the tort of false imprisonment, and the right to compensation under Article 5(5) of the European Convention on Human Rights.  The case details are here.

The central question in the appeal is whether a failure by the executive to conduct regular reviews of the exercise of a discretionary power of indefinite detention, where such reviews are required by published policy and subordinate legislation, renders continued detention unlawful so as to give rise to a claim for damages in false imprisonment. [read more]
 

In November 2009 we blogged the permission application in the case of Joseph v Spiller ([2009] EWCA Civ 1075). The Notice of Appeal raised general issues about the law of fair comment and the applicant's Written Submissions which criticise the approach of the Court of Appeal as creating "a further level of technicality which is not only unnecessary but also significantly inhibits the defence".

We have now heard that the Supreme Court has granted permission to appeal. Permission was granted on 2 February 2010 by Lord Phillips, Lord Rodger and Lord Mance.  A copy of the Order granting permission can be found here. [read more]

On appeal from: [2008] EWCA Civ 1187. Supreme Court refuses to postpone effect of its asset-freezing decision

In a follow-up judgment , the Supreme Court refused to grant HM Treasury any suspension of the quashing of the asset-freezing legislation which it struck down last week in Ahmed and others v HM Treasury [2010] UKSC 2. 
Lord Phillips, the President of the Court, said that the “court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment”.  Lord Hope, the Deputy President, dissented and would have granted the suspension sought.

For judgment, please download: [2010] UKSC 5
 For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

 
 

The Supreme Court website has been updated with a statement explaining that the Justices of the Supreme Court have decided that "it would not be appropriate or indeed feasible" for there to be a comprehensive Register of the Interests of all of the Justices. The statement goes on to say that it would be impossible for the Justices to identify all of interests which might conceivably arise in future cases. Hence any Register of Interests, which the public would inevitably take to be comprehensive, would be misleading.

Former Law Lord Lord Hoffmann yesterday delivered a strong defence of the current state of English libel law as it relates to "foreigners" in his Dame Ann Ebsworth Memorial Lecture at Inner Temple Hall.  A copy of the Lecture can be found here. Lord Hoffmann argued that English libel law does not unduly encourage libel tourism and that the well-publicised complaints in this regard stem from an American tendency "to believe that their way is the only way" and the self-interest of the British press.

In recent years there has been a great deal of critical comment regarding the ability of claimants who are not citizens of or domiciled in England and Wales to sue in the English libel courts and the susceptibility of foreign defendants to libel actions here.   English libel law has variously been described in the press as "the democratic world's most illiberal" and as a blight on our international reputation. Lord Hoffmann, though, strongly disagrees with these criticisms. His view, as explained last night, is that the complaints about so-called libel tourism "come entirely from Americans" ("enthusiastically supported by the media in this country") and are simply "based on a belief that the whole world should share [the USA's] view about how to strike the balance between freedom of expression and the defence of reputation". [read more]

On appeal from: [2009] CSIH 11

Shares in the company had been disposed of by director and sold to third party as whole share capital of company.  A subscription agreement provided for payment to director of higher proceeds of sale than other shareholders. The question before the court was whether the taxation of the proceeds of sale should be regarded as on income under the Income Tax (Earnings and Pensions) Act 2003. The main issue was whether, under the test laid out in s 446X of the 2003 Act, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal. The Supreme Court dismissed the company's appeal, unanimously, holding that the proceeds were income under the Act, and must be taxed accordingly.

For judgment, please download: [2010] UKSC 4
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

In the spirit of openness and public accountability (and following the update on our 'information wish list'), we’d like to draw readers’ attention to the statistics, corporate information and business plan recently published by the Supreme Court.  These are found on what we suspect is a little visited page on "Corporate Information" on the Court's Website.

The Corporate Information Statistics 2009-10 is not a particularly long document and has no explanatory notes.  Amongst other things, the document outlines the number of permission to appeal applications, permission applications granted and appeals where judgment has yet to be given. It discloses that 56 applications for permission were received last term and that permission was granted in 20 cases.  It also shows that a total of 13 incidental applications were determined - there is, unfortunately, no record of what these were.  The statistics for "appeals listed during next term" are hard to interpret (it is not clear whether they are cumulative or not) and we look forward to more explanation in next terms version [read more]

This appeal, previewed here, was the first to be heard by the new Supreme Court, and was specially chosen for its constitutional significance.  Judgment was given on  27 January 2010 ([2010] UKSC 2). Lord Phillips observed that ‘It is particularly appropriate that these should be the first appeals to be heard in the Supreme Court of the United Kingdom, for they concern the separation of powers.’ [85] 

The appeal concerned the lawfulness of draconian asset-freezing powers adopted by the government, to be used against those suspected of involvement in terrorism. The powers were adopted in order to implement UN Security Council resolutions on terrorist finance. The government passed them by way of Order in Council, without any Parliamentary scrutiny or debate.

In a series of lengthy judgments, the seven-judge Court held that the Orders made were unlawful, for reasons summarised below. Lord Brown dissented in relation to one of the Orders. The judgments amount to an emphatic reassertion of fundamental rights, and the importance of the parliamentary process, in the face of repressive executive action supposedly required by the international fight against terrorism. [read more]

In its first judgment of the year, Application by Guardian News and Media, in HM Treasury v Ahmed ([2010] UKSC 1) the Supreme Court considered the vexed question of anonymity in court hearings.  Giving the unanimous judgment of a 7 judge bench, Lord Rodger began by quoting the “provocative” words of the applicants’ counsel: “your first term docket reads like alphabet soup” [1].  Lord Rodger pointed out that both the last case heard by the House of Lords (BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7) and the first case heard by the Supreme Court (In re appeals by Governing Body of JFS [2009] UKSC 1) involved anonymous parties.

The case concerned a number of individuals who were the subject of “asset freezing orders” made by the Treasury under various statutory instruments.  The asset freezing  orders were declared to be unlawful in the Court’s substantive judgment ([2010] UKSC 2).  The appellants had obtained anonymity orders from the lower courts – with no opposition from the Treasury – and with no detailed consideration by the judges.   At the outset of the hearing – on the first full day of the Supreme Court's operation – a number of media organisations and NGOs applied for the orders to be set aside. The application was adjourned for a full hearing later in the month. [read more]

In September 2009, before the Court opened its doors, we set out our "information wish list" - the information that we wanted the Court to make available to the public in its new spirit of openness and public accessibility. Our list had eight items - based on the best practice of Supreme Courts round the world. Four months later, we return to our list to see what progress has been made. 

The first item was a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties.   In a speech in September 2009, Chief Executive Jenny Rowe had said that "when everything is working fully key information from the case management system will be accessible via the website.  Well, the court does provide "Case Details" - although these are not made available for every case which is pending before the Court and sometimes only appear shortly before a hearing. [read more]

There are two appeal hearings listed next week.   On 1 and 2 February a seven judge court (Lord Phillips, Lord Hope, Lord Walker, Lady Hale, Lord Brown, Lord Mance and Lord Collins) will hear the appeal in R (on the application of Sainsbury's) v Wolverhampton City Council. The case concerns the use of compulsory purchase orders to promote the economic, social or environmental well-being of the area.   The case is previewed here and the Court's "case details" are here.  

On Wednesday and Thursday, 3 and 4 February, a five judge bench (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale and Lord Clarke) will hear the Home Secretary's appeal in the case of R (on the application of JF) v Secretary of State for the Home Department - which concerns the Article 8 rights of sex offenders. The case is previewed here and the case details are here. [read more]

On 27 January the Court (Lords Hope, Saville, Mance, Collins and Lady Hale) handed down judgment in Ofcom v The Information Commissioner ([2010] UKSC 3), the case concerning disclosure of information about mobile phone masts in the UK which has been sought for environmental health reasons. The information sought concerns the location and technical specification of the masts, and following a freedom of information, the Information Commissioner had obtained a disclosure order against the regulator Ofcom.  [read more]

With so much discussion having taken place over the efficacy of removing the UK's highest court from its legislature, it is interesting to note that the issue does not appear to have been finally resolved in the  United States despite its written constitution and a separate court with a long and distinguished history.

The New Yorker magazine has an interesting piece regarding the attendance of the justices from the US Supreme Court at President Obama's State of Union address last night.  [read more]  

In this post, the first of a quarterly feature, we set out a review of the judgments of the UKSC's Michaelmas Term. We will be posting similar reports at the end of each Court term going forwards.  Our aim is to provide a concise summary of the new law made by the Court; but there is a wider purpose, too.  We want to consider what, if any trends, are emerging; and see if we can provide answers to certain key questions which continually surface in the debate about the Court. For example, is it worth the money? Has anything changed? And in the longer term, will the Court act with any greater independence than the House of Lords, and are there any signs emerging that the Court will act in constitutional terms in more radical ways than its predecessor?  [Read More]

This appeal concerns the question as to whether certain provisions of the Sexual Offences Act 2003 (“the 2003 Act”) are incompatible with Article 8 of the European Convention on Human Rights insofar as they imposes on a person convicted of sexual offences and sentenced to imprisonment for a period of 30 months or more the requirement to notify the police of certain information, including his home address (and, if applicable, the place at which he resides), and be placed on the Sex Offenders Register.  Any changes in the information given must be notified within 3 days of the changes occurring.  The changes that need to be notified include where the offender travels within the UK for periods of in excess of 7 days at a time.  The 2003 Act also gave the Secretary of State the power to adopt regulations requiring offenders who leave the UK to give notification to the police before they leave and about their return.  Such regulations were made in 2004.  Importantly for this case, the 2003 Act provides for the notification requirements to be imposed for an indefinite period without the possibility of review.  Likewise, such offenders are placed on the Sex Offenders Register for life without the possibility of review. [read more]

The Indian Supreme Court (known as the Apex Court) has been involved in a dispute about the extent to which The Right to Information Act (the "Act") applies to the office of Chief Justice of India (the "CJI"). 

The Act was passed in June 2005 and came into force in October 2005.  It allows citizens of India to request information from or about public authorities.[read more]