Plant, R. v [2008] EWCA Crim 960

[2008] EWCA Crim 960Case No 2007/03845/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Date Wednesday 9 April 2008
Between
R E G I N ACrown
Newcastle Crown Court
Quayside
Newcastle upon Tyne
NE1 3LA
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MR JUSTICE WILKIE
and
MR JUSTICE OPENSHAW
__________________
- v -
Between
RICARDO PLANT__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________Mr S R Neale appeared for AppellantMiss S Spear appeared for Crown____________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]On 24 April 2007, in the Crown Court at Preston, before His Honour Judge Slinger, the appellant Ricardo Plant was convicted of assault by beating (count 3). He had been acquitted at the direction of the judge of count 2 which alleged breach of an Anti-Social Behaviour Order ("ASBO"). He was acquitted by the jury on count 1 which alleged a separate breach of the ASBO. On 9 October 2007 the appellant was sentenced to a fine of £100 or seven days' imprisonment in default and ordered to pay £150 towards the prosecution costs. The appellant appeals against conviction by leave of the single judge.

The Background

[2]The appellant had a history of making frequent visits both to the offices of Fylde Borough Council ("the Council") and to St Anne's Police Station to make complaints of one kind or another. It is clear that in both these places he was regarded as a considerable nuisance.[3]The appellant was 62 years of age at the time of the offence. For many years he had been in dispute with the Council concerning his business premises in St Anne's.[4]On 7 May 2004, in circumstances which were not put before the jury, the appellant was convicted of offences contrary to the Telecommunications Act 1984, the Criminal Damage Act 1971, and the Protection from Harassment Act 1997 and made the subject of an ASBO, which for three years prohibited him from(i) using any violent, abusive, threatening, insulting, harassing or disorderly words or behaviour towards any person within the boroughs of Blackpool or Fylde; and(ii) causing any nuisance, harassment, alarm or distress by the use of any telephone, fax, texting, e-mail or postal system in England or Wales or directed at any person within England and Wales.[5]A decision was taken within the Council that all approaches by the appellant would be dealt with in the first instance by Mr Allan Oldfield, the manager of Policy and Performance, with whom the appellant should make an appointment. The appellant was familiar with this arrangement, although he strongly objected to it.[6]The facts, as alleged by the prosecution, which gave rise to the charges against the appellant were as follows. On 24 January 2005 the appellant entered the offices of the Council and asked the receptionist for an appointment with the leader of the Council, Mr Coombes. The receptionist told Mr Oldfield of the appellant's arrival and he left a meeting to come to reception. He told the appellant to make an appointment with him later that day to discuss what he wanted with the Council. Mr Oldfield's evidence was that the appellant had said words to the effect of "I don't make an appointment to speak to crap like you" and refused to make an appointment. Mr Oldfield told him that he should leave the premises if he did not wish to make an appointment. The appellant took out his dictaphone. He suggested that Mr Oldfield "wouldn't be as cocky if they went outside" and that he would "love to smack him". That course of conduct was the basis of count 1. Mr Oldfield reminded him that threatening behaviour would be a breach of the ASBO. The appellant left.[7]The appellant then contacted St Anne's Police Station, intending to make a complaint about Mr Coombes, Mr Oldfield and others. He was given an appointment to see a police inspector at 3pm on 26 January 2005. When the appellant attended for this appointment, the only place where he was able to park his car in the police station car park involved blocking the exit of other cars. He was waiting in the reception area of the police station when DC Thompson, a plain clothes police officer, asked him to move his car, which was blocking his own vehicle (an unmarked police car). The appellant did not respond quickly to this request and an argument broke out. The appellant told DC Thompson to stop threatening him. He took out his dictaphone and attempted to record their exchange. He said, "Don't you fucking threaten me" and "Don't threaten me, you're not big enough".[8]In the car park the appellant got into his car and sat in the driver's seat. DC Thompson's evidence was that the appellant still appeared reluctant to move and that he had approached the appellant's car and shouted through the window words to the effect, "Just move the car". As he turned to return to his car he was struck on the back by the door of the appellant's car so that he stumbled forward. When he looked round he observed that the appellant still had his hand on the handle and had obviously opened it deliberately. Other police officers witnessed this scene from a room in the police station and one of them rushed out and arrested the appellant.

The Indictment

[9]The indictment after amendment charged the appellant as follows:
"COUNT 1 STATEMENT OF OFFENCE BREACH OF AN ANTI-SOCIAL BEHAVIOUR ORDER, contrary to section 1(10) of the Crime and Disorder Act 1998. PARTICULARS OF OFFENCE RICARDO PLANT, on the 24th day of January 2005, without reasonable excuse, did an act which he was prohibited from doing by an anti-social behaviour order made under section 1 of the Crime and Disorder Act 1998 by Blackpool Magistrates' Court on the 7th day of May 2004, namely that he used insulting and threatening words by calling Allan Oldfield 'crap' and by stating that he would assault Allan Oldfield. COUNT 2 STATEMENT OF OFFENCE BREACH OF AN ANTI-SOCIAL BEHAVIOUR ORDER, contrary to section 1(1)) of the Crime and Disorder Act 1998. PARTICULARS OF OFFENCE RICARDO PLANT, on the 26th day of January 2005, without reasonable excuse, did an act which he was prohibited from doing by an anti-social behaviour order made under section 1 of the Crime and Disorder Act 1998 by Blackpool Magistrates' Court on the 7th day of May 2004, namely that he harassed Samuel Thompson by thrusting a dictating machine at him and by complaining that Samuel Thompson was threatening him when in fact Samuel Thompson had only asked him to move his car which was blocking the way. COUNT 3 STATEMENT OF OFFENCE ASSAULT BY BEATING, contrary to section 39 of the Criminal Justice Act 1988. PARTICULARS OF OFFENCE RICARDO PLANT, on the 26th day of January 2005, assaulted Samuel Thompson by beating him."

Procedural History

[10]After the events that gave rise to the second and third counts, the appellant was arrested and held in custody by the police. He appeared before the Fylde Coast Magistrates on the following day. He was then granted bail on condition that he did not enter the council offices. He made two or three further appearances at the Magistrates' Court before the matter was committed to the Crown Court. He was committed to the Crown Court on his own election. At that stage no objection was taken as to the joinder of the third count. At that point the particulars of offence in relation to count 2 were as follows:
"RICARDO PLANT, on the 26th day of January 2005, without reasonable excuse, did an act, namely used violent, abusive and threatening words and behaviour towards Samuel Thompson which he was prohibited from doing so by an anti-social behaviour order."
[11]Quite why the matter took so long to come on for trial is not clear, but the papers show that there was a degree of pre-trial activity. In particular(i) on 7 August 2006 the prosecution gave notice of additional evidence, namely a witness statement of Karen Ingham to the effect that the appellant had, over the past three years regularly attended the police station to make complaints about police officers and(ii) on 6 November 2006 the prosecution served a skeleton argument in support of an application to put before the jury the terms of the anti-social behaviour order and of the informations that led to the order being made.[12]Meanwhile, on 19 September 2006 the appellant's solicitors served a request on the prosecution for further and better particulars of, inter alia, the words and behaviour alleged in the second count to be violent, abusive and threatening. The prosecution's response to this was, on 16 April 2007, at the beginning of the trial, to seek and obtain permission to prefer out of time a fresh indictment in the terms that we have already quoted.

Applications made

[13]On 17 April 2007, at the outset of the trial, Mr Neale for the appellant applied to have the second count quashed on the ground that the prosecution evidence did not disclose a case to be tried. The judge rejected that application.[14]On 17 April 2007 Mr Neale applied to have the second and third counts severed from the first count. The judge rejected that application.[15]On 19 April, at the close of the prosecution case, Mr Neale applied to have the second count withdrawn from the jury on the ground that no evidence had been adduced upon which the jury could properly convict the appellant. The judge acceded to that application.[16]On 23 April a renewed application was made by Mr Neale that the third count should be severed from the first count, withdrawn from the jury and remitted to the magistrates' court. In his ruling the judge rejected that application.

The grounds of appeal

[17]The offence of battery under count 3 is only triable summarily. It was joined with counts 1 and 2 under section 40 of the Criminal

Justice Act 1988 which provides, so far as material:

"(1) A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge -- (a) is founded on the same facts or evidence as a count charging an indictable offence; or (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged, ...."
[18]Mr Neale accepts that, pursuant to section 40, counts 2 and 3 could properly be tried together on indictment. He submits, however:(1) Count 1 should not have been joined with counts 2 and 3 because they were not counts of the same offence or part of a series of offences within the meaning of Rule 9 of the Indictment Rules, or alternatively because the prejudice of a joint trial outweighed its probative effect.(2) Count 2 should have been quashed at the outset, after which count 3 could not properly have remained joined with count 1.(3) After count 2 had been withdrawn from the jury, count 3 could no longer properly remain joined with count 1 under section 40. It should have been withdrawn from the jury and remitted to the magistrates' court.(4) Count 1 should not have been joined with count 3 because of the prejudice in relation to count 3 of putting before the jury the fact that the appellant was subject to an ASBO. We shall deal first with the contention that count 1 should not have been joined with counts 2 and/or 3 because this was liable to result in unfair prejudice. The judge dealt with this argument briefly. He concluded that, with a proper direction, the jury would be well capable of sensibly separating the two matters. We agree. Provided that there was otherwise good reason to join counts relating to the two separate incidents, we do not consider that this involved any unfair prejudice to the appellant.[19]We turn next to the question of whether count 2 should have been quashed before the trial started. We raised with Mr Neale the question of the procedural propriety of the application that he had made to quash that count. At paragraph 4-47 of the 2008 edition of Archbold states this:
"Once an indictment is before the court, the accused must be arraigned and tried unless: (a) on a motion to quash it is held defective in substance or form; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) the indictment discloses an offence which a particular court has no jurisdiction to try: per Lord Goddard CJ in R v Chairman of London County Sessions, ex parte Downes [1954] 1 QB 1, 37 Cr App R 148. .... Where a prosecution is properly brought, a judge has no power to prevent the prosecution from presenting their evidence on the basis that he considers it unlikely that there will be a conviction: Attorney-General's Reference (No 2 of 2000) [2001] 1 Cr App R 36, CA."
That passage in Archbold is one that we would endorse. The suggestion that it should be open to the defence before a trial begins to raise an issue as to whether the evidence that the prosecution have given notice that they intend to call will be sufficient to establish the offence charged would, it seems to us, invite the thoroughly undesirable consequence of very lengthy additional pre-trial hearings. On reflection Mr Neale accepted that the procedure that he had adopted had not been appropriate and that it might have been more appropriate for him to challenge the application to amend the indictment. He did not, however, adopt this course. His argument before the judge was that the conduct particularised in the amended count 2, and described by the police witnesses in their statements, was not capable of amounting to breach of the terms of the ASBO. The ASBO prohibited "violent, abusive, threatening, insulting, harassing or disorderly words or behaviour". Mr Neale picked on the word "harassed" in the amended Particulars of Offence and argued that this word was not justified by what was, on analysis, a single incident. Harassment, he submitted, could only properly describe a course of conduct.[20]Before us Mr Neale further relies upon the fact that, at the close of the prosecution case, the judge ruled that there was no case to answer on count 2. He submits that there was nothing at that stage to justify the judge's decision that was not before him when the original application to quash the count was made.[21]In dismissing Mr Neale's application,

the judge analysed the prosecution case from the witness statements as follows:

"This incident began in the police station itself, continued onto the forecourt and ended up whilst the defendant was sitting in his car. It involved not only, if the prosecution case be right, a number of threats but also the pushing of this tape recorder close to the officer's face."
The judge concluded that this evidence could properly found a conviction by the jury of the offence charged. We agree. In our judgment such conduct was capable of constituting breach of an ASBO that prohibited the use of any "violent, abusive, threatening, insulting, harassing words or behaviour".[22]It is true that the judge subsequently ruled at the close of the prosecution case that there was no case to answer on count 2. He did so because DC Thompson had said that he had ignored the appellant, had not felt threatened by him, had not felt that he was committing any crime and would have thought it ludicrous to arrest him before he got back into his car. It is open to question whether the judge was right to place so much weight on the subjective reaction of DC Thompson to the appellant's behaviour. It does not follow from the fact that he did so that he should have ruled that there was no case to answer before that evidence had been given.[23]For all these reasons we dismiss this ground of appeal.[24]Next we deal with the question of whether, under rule 9 of the Indictment Rules, count 1 should have been joined with counts 2 and 3. That rule provides:
"Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character."
Mr Neale argued that the facts which founded the charge the subject matter of count 1 could not be said to be of the same or similar character to those that founded counts 2 and 3. We do not agree. The conduct alleged at the council offices, when looked at overall, was very similar to the conduct alleged at the police station. On each occasion the appellant was alleged to have used words that were at least abusive. The alleged offences formed part of a series of acts of similar character. This ground of appeal is also dismissed.[25]Finally, we turn to the question of whether once count 2 had been quashed, count 3 should have been left to the jury. Mr Neale's argument is and was that at that stage the test in section 40 of the 1988 Act fell to be applied and that, applying that test, count 3 could not properly be joined with count 1. His submission was that the consequence of directing the jury to acquit on count 2 was effectively to remove that count from the indictment. The judge appears to have accepted this approach and that section 40 fell to be applied to those counts that remained live. But he held that section 40 was so satisfied. He said:
"There remains, nonetheless, a significant amount of similar conduct; antagonistic and unco-operative behaviour against a person whom the Crown alleges the defendant knew was a person in authority, threats to use a recording device once a confrontational situation had been created and, at the last, threats of violence or the use of violence. There is no difference in the factual scenario upon which the Crown sought to establish the 26th January breach of an ASBO and the assault on Mr Thompson. All the evidence of events that day prior to the alleged assault is a necessary background to understanding what is alleged to have occurred. I found prior to evidence being heard that there was a proper nexus between counts 1 and 2 with the inevitable link of counts 2 and 3 and I find that the nexus is not diminished by the formal not guilty verdict returned on my direction on count 2. Count 1 alleges breach of the ASBO by, inter alia, threats of violence against a person in authority; count [3] alleges actual violence two days later against another person in authority. I find that they constitute a series of offences of similar character and, accordingly, they should proceed together to be decided by the jury."
[26]We think that the judge's analysis was correct. The alleged battery was the final incident in an alleged course of conduct which, viewed as a whole, amounted to the same sort of anti-social behaviour that had been alleged to have been committed on the 24th. The prosecution could well have included the alleged battery as an incident of the conduct alleged to have infringed the ASBO. The fact that it was charged as a separate offence cannot affect whether it was properly joined with the first count.[27]There is a further point. Section 40 is a procedural provision. It deals with joining a summary offence with an indictable offence in the same indictment. It is relevant to the stage at which the indictment is drawn up. It does not follow that if at the end of the prosecution case there is found to be no case to answer in relation to the indictable offence, that the summary offence has to be withdrawn from the jury and retried before the magistrates. Such a course would be wasteful of resources and in conflict with the desirability of processing criminal proceedings promptly. Even if the appellant had been charged only with counts 2 and 3, we do not consider that the effect of withdrawing count 2 from the jury at the close of the prosecution case meant that count 3 could no longer be the subject of the jury's verdict.[28]The fallacy in Mr Neale's submissions is the suggestion that the effect of directing the jury to enter a not guilty verdict on count 2 was to amend the indictment by striking out that count. That is not the case. Notwithstanding the not guilty verdict on count 2, the indictment remained in the same and proper form. The fallacy of the argument is underlined by the answer that Mr Neale gave to us when we asked the question:
"What would happen if at the end of the trial the jury returned a not guilty verdict on the indictable offence, but had not yet reached a decision on the summary offence?"
Mr Neale submitted that the correct course there also would be to withdraw the summary offence from the jury and remit it to the magistrates. But for the reasons we have given, no such action would have been required or appropriate. The indictment would have remained in the form in which it originally was and in that form it justified the joinder of count 3.[29]For all these reasons this appeal is dismissed.[30]We would add this. The course of conduct in this case fell at the bottom level of criminality. We think it unfortunate that the appellant chose to exercise his right to seek trial by jury in relation to these matters and particularly ironic that, having done so, he should then take objection to the jury dealing with the third count of battery.[31]MISS SPEAR: My Lord, I am instructed to seek costs in the sum of £900.

THE LORD CHIEF JUSTICE: What do you say about costs, Mr Neale?

[33]MR NEALE: My Lords, as I understand it, the appellant is legally aided with a nil contribution. He has, as I understand it, no individual means. He lives on the charity of others.

THE LORD CHIEF JUSTICE: In those circumstances we shall make no order as to costs. _______________________

Cited in 3 later judgments