S v Director of Public Prosecutions [2003] EWHC 2717 (Admin)

Case No CO/1381/2003[2003] EWHC 2717 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 3 November 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE ROYCE
Between
SClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
SIMON WALEY (instructed by Lancaster's Solicitors) appeared for CLAIMANT for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED
J U D G M E N T
[1]MR JUSTICE ROYCE: This is an appeal by way of case stated by the appellant against his conviction for burglary by the Bridlington Youth Court on 21 November 2002. He was charged jointly with two other youths, N and D, with the burglary of commercial premises called Jarvis Workspace on 22 May 2002. The justices found the following facts:(a) The appellant did not know what N and D were going to do when they first went into the building.(b) He saw them leave the building with items and followed them to D's house where they hid the items in an outhouse (by 'they' we take it to mean that is a reference to N and D).(c) He warned N and D that they were committing burglary.(d) He nevertheless followed them when they went back into the building carrying a bag.(e) He remained outside the building.(f) He knew why N and D had gone back into the building.(g) He still chose to remain outside the building. They were of the opinion that:
"The appellant knew why D and N had gone back into the premises, but still chose to remain there. Accordingly, we found him guilty of the offence of burglary."
[2]The question framed for the opinion of this court is:
"Whether, on the magistrates' findings of fact without more, that amounts to either the actus reus or the mens rea of burglary and thus was the appellant correctly convicted in law of the offence of burglary?"
[3]The question is not very happily framed. On the evidence it may have been open to the justices to infer and then conclude that the appellant was party to a joint enterprise to burgle: for example, by acting as a lookout. However, it is noteworthy that they did not. Had they found that he was deliberately assisting or encouraging others to commit the burglary then, of course, he would have been guilty. Also, had he been present ready to assist if required, that might also be sufficient. All they found here, however, was:(1) that he knew the other two were burgling the premises, and(2) that he remained at the scene outside. Those findings without more are insufficient to justify his conviction of the offence of burglary.[4]Therefore, the answer to the question framed is no. It is unsurprising in these circumstances that this appeal is unopposed. The consequence is that the conviction must, in my judgment, be quashed.

LORD JUSTICE KENNEDY: I agree.