Tuesday, 26 November 2013

Law report - wrongful dismissal

Woods-Forde v The Bermuda Hospitals Board [2013] SC (Bda) 77 Civ

The Plaintiff worked at the hospital, and was the subject of a disciplinary investigation arising from an allegation concerning a personal dispute with a work colleague. The plaintiff denied the allegation and was later fired for gross misconduct both for the personal dispute itself and for lying about it.

She claimed for wrongful dismissal on the basis that her conduct was not gross misconduct such as to justify firing her. At trial it was conceded by the hospital that the actual allegation that had resulted in an investigation was not itself gross misconduct, and they relied only on the lying about the allegation.

Justice Hellman HELD that the denial was not gross misconduct (at [49]-[54]). The hospital's policies set out the type of dishonesty which it considered to be gross misconduct, which were essentially financial dishonesty.

He awarded her three months' salary in damages, which he said was equivalent to a suitable period to enable her to find another job ([62]-[65]), taking into account her poor health and the difficult labour market.

The plaintiff was also diabetic, so also claimed damages for the loss of her health insurance and having to finance her own overseas medical treatment. The judge agreed that these were damages that could be claimed, as when she entered into employment, the parties could have anticipated that wrongful dismissal would result in her losing the benefit of the health insurance [69]. He calculated the loss by looking at her medical expenditure over the year following her dismissal, and then pro-rating it to the three month period that he found was a reasonable notice [72].

The plaintiff also claimed damages for loss of reputation, as it is more difficult to find a job when you are fired in such circumstances. However, this would have involved the court choosing not to follow the House of Lords case of Addis. Justice Hellman acknowledged that Addis has been criticised but that it is not for him to depart from House of Lords authority at the Supreme Court level ([73]-[76].

Comment - it is surprising that the issue of loss of health insurance has not come up before on termination of employment. This judgment gives a helpful guide as to how such a loss might be calculated in suitable cases.

Child of Bermudian unable to travel?

The Royal Gazette has published an article about the problems of a Bermudian woman getting Bermudian status or a passport for her son, as she only acquired Bermudian status after her son was born.

She says she is unable to travel with her son as she has been unable to obtain travel documents for him.

If the circumstances of the case are as reported, there should be a relatively simple procedure to get a British Overseas Territories (BOT) passport for her son. She could ask the Governor to register him as a BOT citizen, and she would then be able to get a passport for him.

The story reports that the mother was not Bermudian at the time of birth, but the father was. Provided that paternity can be proven then the child should be entitled to Bermudian status from birth.
 I also wonder whether the mother might have an argument for claiming that she was entitled to Bermudian status at birth. She was born overseas, but if her Bermudian dad was domiciled in Bermuda at the time of her birth (which doesn't necessarily mean he was living here) then she would also be Bermudian from birth and so her son would be too.

Even if her son cannot get Bermudian status from birth, he will be deemed to be Bermudian until he turns 22, so it is not too much of a problem right now. The key thing is the passport, which shouldn't be difficult to get.

Tuesday, 12 November 2013

Law report - naturalisation as British Overseas Territories citizen

Stevens v The Governor and the Deputy Governor [2013] SC (Bda) 75 Civ

The applicant was the husband of a Bermudian who applied to the Governor to be naturalised as a British Overseas Territories citizen on the basis that he met all the requirements, including that he had no restrictions on the period for which he was allowed to remain in Bermuda for.

The Deputy Governor refused the application on the basis that the conditions placed on the husband of a Bermudian in order to continue to enjoy the spouse's rights amounted to such restrictions.

Hellman J held - being guided by 30 years of established nationality law practice in the UK - that restrictions on the period did not have the meaning given to it by the Deputy Governor. He quashed the refusal and ordered the Deputy Governor to reconsider. He noted that there is still discretion in whether or not naturalisation would be granted.

Comment - this is a welcome judgment which helps to clarify when somebody is able to naturalise. Naturalisation enables the person to acquire a Bermudian passport, which is helpful in particular for people from countries who find it difficult to obtain visas when travelling. It can also simplify the process of obtaining Bermudian status for non-Commonwealth citizens. Naturalised BOT citizens are also deemed to belong to Bermuda under the Constitution, although it is unclear what effect this actually has.

This judgment might affect other people who had their naturalisation applications refused. If an application is refused, the reasons must be communicated to the applicant, and the refusal must be a reasonable decision.

Tuesday, 8 October 2013

Law report - tariffs for life sentences

I was asked by the Royal Gazette to give an overview of today's Privy Council judgment concerning parole for life sentences. Below is what I passed on to the newspaper:

Parliament passed a law on tariffs for life sentences, which said that a murderer shall not be eligible for release until they have served at least 15 years in prison, and a premeditated murderer shall not be eligible for release until they have served 25 years.

The Bermuda Court of Appeal had said these tariffs were void because tariffs are a matter for the trial judge under the Bermuda Constitution. As they were void, the trial judge could decide on a higher or lower tariff, depending on the circumstances of the case.

However, the Privy Council reached the conclusion that the 15/25 year limits were in fact setting maximum periods – i.e. that parliament meant eligibility for parole could be set for any period up until 15/25 years.

This means that prisoners currently serving life sentences with longer tariffs will be able to get their tariffs capped at 15 or 25 years. It is stressed that this does not mean murderers will automatically go free after 15 or 25 years – it is still a matter for the parole board as to whether they should be released.

It is also stressed that Parliament could get around the Privy Council judgment by simply removing the maximum periods retrospectively. Although the Bermuda Constitution prevents penalties being increased retrospectively, there are good legal precedents that the period for parole eligibility is not a penalty for that purpose.

If that is right, then the Privy Council judgment might turn out to be a storm in a teacup.

For reference, the most relevant parts of the judgment are paras 4-5 and 14-16.

For further reference, the cases on parole eligibility are Hogben v the United Kingdom (European Court of Human Rights) and R v R [2003] 4 All ER 882 (English Court of Appeal). There are probably others too.

It'll be very interesting to see how Parliament implements damage control so as to ensure judges are able to set longer tariffs.

Thursday, 23 May 2013

Law report - serving parties outside of Bermuda in trust proceedings

In the matter of the Hanover Trust [2013] SC (Bda) 38 Civ

The Chief Justice clarified an issue regarding service of court proceedings on overseas parties to a trust action. He held that in trust proceedings concerning a Bermuda trust or where the trust property was in Bermuda, it was not necessary to obtain the leave of the court to do this, as the court had clear jurisdiction to hear such applications [143]-[15]. Leave would only be required if the overseas party might potentially challenge jurisdiction to hear the dispute or whether Bermuda is the most convenient forum to hear it [13].

Law report - court and collection fees

Acorn Services Ltd v Dill [2013] SC (Bda) 33 App

The Plaintiff had been awarded judgment for rent arrears, including collection and legal fees attainable under the lease. The Plaintiff had appealed on the grounds that the Magistrate had not awarded the full collection fees under the lease.

Kawaley CJ held that the collection fees were a contractual claim which the Plaintiff was entitled to. The clause in the contract did not put a penalty on the Defendant, but merely reflected the costs that the Plaintiff had suffered in order to collect on the debt [10]-[13].

Law report - stays of proceedings

In the matter of an application for information about a trust [2013] SC (Bda) 45 App

Justice Hellman, sitting as a single judge of the Court of Appeal, had refused a stay of an order by the Chief Justice for the applicant to disclose accounting information to the respondents, pending appeal to the Court of Appeal.

The applicant then re-applyied for Justice Hellman to stay the matter only until the full Court of Appeal could consider the matter in a further month's time.

Hellman J held that he did have the authority to do this [13]. He decided that, as the full Court of Appeal would be able to consider the matter in as little as a month, it tipped the balance in staying the order for that short period [20].

Wednesday, 22 May 2013

Law report - two sets of costs and judicial review

Kentucky Fried Chicken (Bermuda) Limited v Minister of Economy, Trade & Industry [2013] SC (Bda) 35 Civ

This judgment concerned what happens when an applicant has failed to obtain the relief they were seeking in judicial review proceedings where there is more than one respondent.

Kawaley CJ noted that this was strangely not something which had been raised before in a considered judgment in Bermuda [5].

The general position is that only one set of costs would be awarded as an applicant should not have to pay for duplication of effort. There is an exception when a second respondent has a separate interest on an issue which is not dealt with by the first respondent.

The Chief Justice took the route of allowing costs to both respondents, but only one set of costs for each issue, depending on whether the issue was one properly for the Minister or for the BIU to respond to, so as to avoid duplication of costs [7]-[10].

The Chief Justice indicated that, in future, the proper time to raise the issue of paying two sets of costs is early in the proceedings, in order to allow the parties to focus on who should play an active role in the proceedings [11].

Tuesday, 30 April 2013

Law Report - Loophole in the Criminal Appeal Rules?

Brangman v Raynor [2013] SC (Bda) 23 App

In his appeal against sentence, Brangman received a small reduction in his sentence to bring it into line with other sentences for sex offences handed down by the Magistrates' Court.

An interesting issue arose, however, as to whether appellants were able to exploit a provision in the law to get an automatic extension of bail when they appeal.

Kawaley CJ said that sections 11 & 12 of the Criminal Appeal Act appear to allow that if an appeal against conviction is filed before sentencing takes place, the proceedings are automatically stayed and so if the appellant is already on bail he cannot be remanded until the appeal is determined [41].

That appeared to be what had happened in the present case, where the appellant had managed to cleverly get his appeal in between the conviction being read out and the sentencing, presumably by serving it personally on the Senior Magistrate. Kawaley CJ said he would welcome the views of the Court of Appeal on this issue.

Comment - It's also noted that it requires the lawyers to not only get the appeal form drafted in time but to find and serve the Senior Magistrate. If the Senior Magistrate is sitting in Court, it would presumably be contempt of court to approach the bench to serve him without his permission. That might be a practical way for the Senior Magistrate to postpone an appeal until bail and other important issues have been dealt with.

Law Report - court appointment of third arbitrator

Carnival Corporation & ors. v Estibeiro [2013] SC (Bda) 20 Civ

The parties were involved in an arbitration under Bermuda law. The Respondent had applied to the Florida Court for the appointment of a third arbitrator. The Applicants had applied to the Bermuda Supreme Court for the same, submitting that the Bermuda Court was the appropriate place to do this.

Kawaley CJ agreed that the Bermuda Court was the appropriate place to seek relief in a dispute concerning a Bermuda arbitration. He appointed Geoffrey Bell QC, who was of a higher order of seniority than those suggested by the applicants, which should help to allay the concerns of the respondent as to the third arbitrator's neutrality.

Law Report - disclosure of information - Tax Information Exchange Agreements

Bunge Limited v The Minister of Finance [2013] SC (Bda) Civ

The Applicant was challenging the Minister's refusal to provide a copy of a request for information by Argentina under an Agreemnet for the Exchange of Information Relating to Taxes.

Hellman J notedthat the International Co-operation (Tax Information Exchange Agreements) Act 2005 was materially similar to the USA - Bermuda Tax Convention Act 1986 for these purposes, although the 2005 Act did not contain a provision that the notice requesting the information should contain the pertinent details of the initial Request [15].

He held fairness and justice required that an applicant was entitled to be satisfied that a request fulfilled the statutory requirements. The right to disclosure of the request is not unfetted. Confidential or sensitive information, for example information prejudicial to the investigation, could be redacted [38]. If necessary, the Court could review the unredacted request in the absence of the applicant to determine whether or not it is valid [41].

Wednesday, 3 April 2013

Welcome to MJM's Bermuda Law Blog!

MJM has just launched a new legal blog. Welcome to what is now the second best law blog in Bermuda!!!


I wrote about the new procedures for immigration appeals in the Royal Gazette on Monday...

Wednesday, 20 February 2013

law report - "nominal" damages and costs

Williams v the Bermuda Hospital Board [2013] SC Bda 15 Civ

The Plaintiff had been awarded damages of $2,000 against the Hospital, the Defendant, and awarded the costs of the action. Hellman J had described the damages as "nominal"

The Defendant had applied to overturn the order for costs, on the grounds that when a Plaintiff has succeeded in obtaining only nominal damages, the usual costs order is that the Defendant is entitled to their costs.

Hellman J considered authority which indicated that nominal damages meant something which were not real damages at all, but which gave an entitlement to a judgment or verdict because your rights have been infringed [3]. This was not the same as small damages
Comment - for example, if somebody trespasses momentarily on your land you might be entitled to sue them and win, as your rights have been infringed, but as you have not suffered any real damage, the court would probably award legal costs to the trespasser.

Hellman J clarified that, when he used the term "nominal damages", he was not using it in its strict legal meaning, but was using it in the sense of "small" damages [4].

The Defendant submitted further that the Plaintiff had only obtained 1-2% of the amount claimed. However, the solution for a Defendant who believes a Plaintiff will only obtain a percentage of his claim is to pay the amount into court to protect itself from paying costs [9].

Further, when making a costs order, the Court is entitled to consider the effect that the award would have on the award of damages [11]. If it is the court's view that a party is entitled to a small award of damages, but then awards costs against the Plaintiff, then the result will be that the plaintiff is in debt to the Defendant.

Law report - claiming indemnity costs from other side

Femi Bada v Capcar Enterprises Ltd [2013] SC Bda 13 Civ

Comment - this case will be particularly interesting for landlords and tenants, as leases in Bermuda often contain an indemnity clause such as this.

The parties had had a contract dispute, and it was a term of the contract that the Appellant agreed to fully indemnify the Respondent for all legal costs incurred in enforcing the terms and conditions.

The outcome of the legal action was that the Respondent discontinued its claim against the Appellant and agreed to pay its legal costs to be taxed on a full indemnity basis.

Kawaley CJ held that this type of indemnity clause is designed to create a legal entitlement to compensate a party for all of its costs falling within the scope of the clause [17]. This differs from usual costs taxations, where all costs are considered on the basis of whether it is reasonable for the other party to pay them.

To deprive a party of their full costs would require exceptional circumstances, for example if the bill included time that was not spent, or did not reflect the terms on which the attorney was hired, or was clearly grossly inflated [22].

Thursday, 31 January 2013

Law report - notes of evidence at Employment Tribunals

Island Construction Services Co Ltd v Brangman [2013] SC (Bda) 7 Civ

In an appeal against the decision of an Employment Tribunal, Hellman J noted the problems caused by a lack of procedural rules for the Tribunal. He emphasised the importance of the Chairman of the Tribunal to take a full note of the evidence [9].

Law report - Appeals from Human Rights Board of Inquiry

Smith v Minister of the Environment [2013] SC (Bda) 8 App

A Board of Inquiry had decided against Ms Smith in her human rights complaint against the Minister of the Environment.

It did not make any subsequent order, as orders are generally made to order a party to do something, whereas in this case the complaint was merely dismissed.

Ms Smith appealed against the decision to the Supreme Court. The Respondent applied to have the appeal struck out, on the grounds that the Human Rights Act only allows for appeals against orders, not against decisions.

S.21 states that "any party against whom an order has been made ... may appeal"

However, Hellman J noted that the sidenote or heading to s.21 read "Appeal from decision of Board of Inquiry" [17]. This indicated that parliament intended "order" to include "decision".

It would produce an anomalous result to apply a literal approach to the meaning of the word "order". In some contexts, order can have the meaning of covering all decisions of a court [21].

Given the purposes of the Human Rights Act, it should be interpreted broadly so as to attain the objectives of the Act [23].

Furthermore there was no rational basis for not allowing appeals against decisions as opposed to orders [26], and it would merely result in an unsuccessful party having to bring judicial review, a remedy of last resort [27]. If somebody wished to challenge both a decision and an order, they would have to start two sets of proceedings, which would not make any sense. This indicated that "order" was intended to include "decisions"

Law report - hospital negligence

Williams v The Bermuda Hospitals Board [2013] SC (Bda) 1 Civ

The Plaintiff had gone into ER complaining of pains in his abdomen, which turned out to be appendicitis. He was seen after just over an hour, and the doctor ordered a scan. He had been in the hospital about three hours by the time the scan was ordered.

He was eventually scanned more than seven hours after his arrival, and the scan was sent overseas to be interpreted. It was another two hours before the results came back.

Eleven hours after arrival, he was finally operated on. It was noted that he had a ruptured appendix and acute appendicitis. There were complications during surgery, which resulted in a two week hospital stay.

He sued the hospital for having a system set up which negligently failing to diagnose and treat his appendicitis within a reasonable time.

There is a question as to whether hospital systems should be judged according to accepted professional standards (as in Bull v Devon Area Health Authority (English Court of Appeal)); or regardless of them, as in Collins v Mid Western Health Board (Irish Supreme Court). Hellman J held that a hospital system must be scrutinised on its merits. The court should take account of generally accepted practices. Insofar as medical matters are engaged, they will be judged according to whether they are accepted by a responsible body of medical opinion. Medical and administrative matters might overlap [92].

Hellman J found that the hospital was negligent due to the delay in diagnosing and treating Mr Williams, which caused him the pain and suffering of having to wait so long for surgery. However, he was unable to find that the delays were probably the cause of the further complications.

Law report - sentencing for drugs offences

Clarence James and Delroy Duncan v Raynor [2013] SC (Bda) 9 App

The Appellants were appealing against conviction and sentence for importation of cocaine. I had a moment of early morning confusion upon starting to read this judgment, as Delroy Duncan is the name of the President of the Bermuda Bar Council. However, I have it on good authority that this is an entirely different Delroy Duncan.

The noteworthy element of the judgment is the appeal against sentence. The appellants had both been sentenced to nine years in prison, which was higher than the recommendation of 7.5 years each by the Crown Counsel.

Kawaley CJ gave guidance on how defendants should be sentenced for drugs offences.

s.27B of the Misuse of Drugs Act states that the Court shall have regard to the street value of the drug and of its effect on society, and then add fifty per cent to the basic sentence.

s.27B does not define what a basic sentence is. If it is taken to mean sentences commonly given, then you could end up with sentences being rapidly inflated as 50% uplifts would start being added to basic sentences which already included a 50% uplift. To avoid this problem, it is necessary to consider what the sentence would have been before s.27B was brought in in 2005. Fifty percent is then added to that.

Comment - this case illustrates the problem with sloppy draftsmanship. Clearly parliament thought that drugs offenders were not being sentenced harshly enough, and came up with a solution of adding a 50% uplift to sentences. However, we now have a situation where judges are required to do a slightly complex exercise, looking back to 2005, to come up with a justifiable sentence. And the issue had to be litigated to work out what parliament meant, which has cost the public money.

One wonders whether the same result could have been arrived in a more straightforward manner by simply upping the maximum sentences, indicating that these were now seen as offences of greater gravity.

Friday, 4 January 2013

Law report - disclosure of funding agreement

Stiftung Salle Modulable v Butterfield Trust (Bermuda) Limited [2012] SC (Bda) 71 Com

Part of the Plaintiffs' claim for damages included the costs of pursuing its rights in the matter, including the cost of a funding arrangement for the litigation.

The Defendant sought disclosure of the funding arrangement, alleging that the Plaintiffs were unable to claim such damages as it was too remote from their claim and that such an agreement was champertous (i.e. it is unlawful for third parties to fund litigation with an expectation to receive part of the proceeds). The Plaintiffs disclosed only a redacted version, and the Defendant applied for full disclosure.

Kawaley CJ held that the document was covered by litigation privilege. However, such privilege can be waived when a party relies on the document for his case. Voluntary reliance on any part of a document normally waives privilege in the entire document. However, even when privilege has been waived it might still be the case that part of a document may be withheld due to irrelevance to the matters at hand.

In the circumstances, the redacted portions, relating to the amount of the financing and the budget and timeline, were irrelevant for the purposes of determining whether or not the agreement was unlawful. Such information could give away the Plaintiffs' litigation strategy and prevent the parties being on an equal footing before the court.

This is to say nothing about whether or not the document is lawful or not which, presumably will be a matter for another day.

Comment - Lawyers will wait with much interest to discover the outcome of the case, which might help clarify when funding arrangements may be entered into for litigation. Kawaley CJ has said previously, in First Atlantic Commerce Limited v The Bank of Bermuda Limited [2007] Bda LR 36,  that (my emphasis) "If maintenance is still a tort in Bermuda, public policy will rarely be offended by any funding arrangement which is recognised in the wider commercial world. "

Thursday, 3 January 2013

Law report - occupier's liability

Minors v Simon [2012] SC (Bda) 75 Civ

The Plaintiff had to have her leg off after a wall collapsed onto her at the Defendant's property. She sued for loss and damage, claiming that the wall was dangerously defective.

The Defendant argued that the wall was safe enough and that, in any event, the cause of the accident was an assault by the Plaintiff's boyfriend on an occupant of the property, during which he pushed the occupant and they both fell against the wall causing it to collapse.

HELD by Hellman J:

That the wall complied with the relevant building codes for the time when it was built and had managed to withstand Fabian. It was therefore safe enough.

That even if the wall was unsafe and the defendants knew it to be unsafe, the actions of the Plaintiff's boyfriend were a paradigm case of a deliberate, violent and unforeseeable act sufficient to relieve the defendants of any liability.

Comment - this case is a interesting illustration of intervening causes. If the wall had been unsafe, then the injuries would have been caused by the owner's negligence in failing to maintain the wall. In Horton v Taplin Contracts Limited [2003] ICR 179 CA, an employer was relieved of his statutory duty regarding unsafe scaffolding as the employee had fallen due to another individual deliberately shaking the scaffolding in order to make him fall. In this case, the plaintiff's boyfriend did not intend for the wall to collapse, but his violent actions led directly to this result.

Law report - delay and fair trial

Craig v Wilson [2012] SC (Bda) 74 Civ

The Plaintiff had had a sixteen month delay in taking out a summons for directions for trial. This was on top of existing delays for a writ that was issued in June 2008.
The Defendant said that the delays had prejudiced his right to a fair trial as he no longer had documents that he relied on for his defence.

Hellman J held that while the delay was excessive and inexcusable, it had not prejudiced the Defendant's right to a fair trial, as there was no evidence that the documents had been lost due to the period of delay. It was for the Defendant to obtain and preserve documents that he relied upon.

The lost documents do not go to liability but only to quantum. If documentation is unavailable, the court can where appropriate give allowance for this.

Law reports - costs of petition for segregated accounts company

Gottex v New Stream [2012] SC (Bda) 66 Civ

The Plaintiffs had successfully obtained an order to put the Defendant into receivership, with liberty for the Plaintiffs to apply for their costs

The point arose as to whether the costs should be paid only out of the general account or out of the segregated accounts (including the Plaintiff's own segregated account).

Kawaley CJ held that provided the litigation was linked to a segregated account, then it may be liable for costs. In the present case, the managers of the segregated accounts had pro-rated the company's costs to each account, and it was more likely than not that the directors had approved of such allocation. The company's bye-laws provided for such pro rating. There was no rational basis for inferring that the company would embark on litigation with such commercial significance without considering who might foot the bill.

Kawaley CJ also held that the costs should be pro rated also against the Plaintiff's own segregated accounts. All of the accounts are accounts of the company. The action had been brought against the company, challenging the validity of a transaction purportedly entered into by the company on behalf of all share classes. The costs therefore are expenses which were contemplated to be allocated across all accounts. This is part of the bargain that an investor makes when setting up a segregated account.

Unlike shareholders, segregated accounts do not have a seperate legal personality to the company but is merely an extension of the company's personality.

There might be circumstances where an account owner could claim that litigation charges were improperly charged, which might be a claim against the managers or directors.

The Chief Justice was careful to say that his findings were subject to refinement in future cases, given that this was a very novel area of law.

Law report - company appearing on minority oppression petition

Re Full Apex (Holdings) Ltd [2012] SC (Bda) 73 Com (14 December 2012)

The Company applied for an order to participate in the proceedings.

Kawaley CJ  held that the test for a company to participate in minority oppression proceedings was a simple one: whether such involvement is in the interests of the company having regard to the nature of the allegations raised and their impact on interests other than those of the disputing shareholders, being interests the company can legitimately claim to represent. In the case of a publicly listed company whose public shareholders are not before the court, those wider interests may be engaged [15]. Kawaley CJ considered Queensland authority in reaching this conclusion, and rejected the submission that this was inconsistent with English authority that a company ought not to be joined on such an application.

Law report - expert evidence on gang members

Cox v R (2011) Crim App 15/15A
Myers v R (2011) Crim App 17

The Appellants had been convicted of murder and using a firearm. In both cases the Prosecution had relied on "gang evidence", i.e. evidence of specialist police officers who were familiar with the gangs on the island.

The officers gave evidence that the Appellants were members of 42nd Street (Cox) and Parkside (Myers), which were rival gangs, and that their victims were members of the other gang. The officers gave evidence of a feud between the gangs and of the ongoing tit for tat retaliation between them, which they said was sufficient reason for the Appellants to kill rival gang members

The Appellants appealed on the grounds that the evidence was irrelevent, amounted to hearsay, that the police officers were not experts and so unable to give an expert opinion, and was inadmissible as it was putting evidence of general bad character before the court which could prejudice the jury.

It was HELD by Evans JA and Zacca JA that the evidence of the police officers was relevant as evidence of a motive is clearly relevant to whether somebody is guilty.

The police officers dealt with the gangs on a daily basis and so had sufficient expertise to give their expert opinion on how the gangs operated.

Although the gang evidence might show the bad character or tendency to violence of the accused, it was directly relevant to the offence and, without that evidence, the case put to the jury would appear incomprehensible or incomplete.

As long as the judge explains the source of the witness' expertise, it is acceptable to describe a police officer as an expert. However, "gang expert" is not a particularly helpful term, and it would be better to spell out that he is an expert on gang behaviour.
The Court of Appeal suggested that careful consideration in future cases should be given as to:
  • distinguishing factual evidence from opinion evidence;
  • what parts of factual evidence are based on hearsay;
  • establishing an officer's qualifications and experience;
  • using terms such as "experienced police officer" or "expert on gang behaviour" rather than "gang expert";
  • directing the jury as to the scope of the opinion evidence  and the basis for admitting it;
  • bearing in mind the potential prejudice to the defendent of the evidence before admitting it
The two judges dismissed the appeals

Auld JA also said that he would dismiss the appeals but dissented on the issue of the gang evidence. There was enough scientific and factual evidence to show that the defendants intended to kill their victims, without relying on the gang evidence. He said that at best the evidence shows a shared motive with other people, but does not provide evidence that the jury can rely on to be sure of the defendant's guilt.

 He also explained his unease with using gang evidence generally. Gang evidence is not a science, and so it is difficult for a trial judge to determine in what circumstances a purported expert is in fact an expert. If trial judges do not sufficiently scrutinise the issue of the value of the evidence and the prejudice to the defence, then there is a danger of drifting into a culture of prosecutors attempting to bolster borderline cases with gang evidence of limited value but which is highly prejudicial.
Such evidence should be admitted only when it has a clear probative effect or supporting the effect of other evidence, balanced against its prejudice to the defence.

It would be difficult for the defence to find its own experts to counter the prosecution's gang evidence and, given their relationship with the prosecution, police officers are unlikely to be perceived as impartial, which is normally expected of expert witnesses.

Comment - it appears that the issue of gang evidence will go onwards and upwards to the Privy Council for final determination.