Wilkinson, R (on the application of) v Director of Public Prosecutions [2003] EWHC 865 (Admin)

Case No CO/4439/2002[2003] EWHC 865 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 21 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF WILKINSONClaimant-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)
MR D ALAKIJA (instructed by Levenes Solicitors, Birmingham B4 7LN) appeared for CLAIMANTMR WE RICKARBY (instructed by CPS, Birmingham B3 2AQ) appeared for DEFENDANT
J U D G M E N T(Approved)
Crown copyright©Judgment
[1]MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated against a decision of District Judge Clancy of the County of West Midlands who at Birmingham Magistrates' Court on 29 January of last year found that the appellant, Carol Wilkinson, was guilty of an assault occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act 1861. The course of the proceedings was unusual. Both sides were legally represented. The prosecution called live evidence. During the course of the prosecution case, as is normal, evidence was given of the interview under caution of the appellant. That evidence was given, not as is often the case by way of evidence of a transcript or summary, but by the playing of the audio tape of the interview itself. The audio tape, I am told by both sides, gave the appellant's account of the incident in question. That account, if accepted by the district judge, would have led to a finding that she was not guilty. During the course of the interview, again as is normal, the appellant was asked questions by the police officer or officers who were engaged in interviewing her. I have not heard the audio tape or seen a transcript, but I assume that the course of the interview followed a normal course with the appellant giving her account and there being questions by the police officers concerning that account.[2]After the conclusion of the evidence for the prosecution, the appellant was called to give evidence by her counsel. The only evidence she was asked to give was to confirm that what she had said at interview was the truth. She therefore gave no live evidence as to what had happened on the occasion in question. She was not cross-examined by the prosecution. That was all the evidence before the district judge. I am told that there was then argument as to whether, in those circumstances, the appellant, not having been cross-examined, the district judge was bound to dismiss the case against her; that is to say, to accept her evidence that the account given in interview was correct, irrespective of his views or findings as to the credibility of the prosecution evidence or the credibility of her account given in interview or her credibility as a witness in the very short period during which she gave evidence. The district judge decided that he was free to decide whether or not to accept the appellant's evidence. He rejected it and convicted her. He says this in the case stated at paragraph 4:
"The defence then continued with the defence case and after the next witness asked for permission to address the court stating that they had an opportunity to look at the law and quoting Wood Green Court exparte Taylor CLR 876 stating that on consideration, even though it was not the end of the case, they felt that as Carol Wilkinson, the defendant, had given evidence and she had not been cross-examined, her evidence had to be accepted as it stood. The fact that the prosecution had not asked any questions implied that her evidence was to be accepted. The prosecutor responded by stating that the prosecution witnesses had given clear contradictory evidence against the appellant's. The prosecution witnesses had been cross-examined and therefore she knew their case but chose simply to ratify her own statements under caution, that being the totality of her evidence in chief. Having considered the cases given to me and checked on O'Connell V Adams 1973 CLR (which was referred to in Blackstones 2002 F 73), I came to the conclusion that Wood Green Court ex parte Taylor 1995 did apply in the Magistrates' Court. At that time no-one was able to get a copy of this particular case. At the end of the case the court heard final submissions from defence counsel."
Pausing there, it does seem from that that there were witnesses other than the defendant called on behalf of the defendant. Continuing with the case stated. "By this time he [that is defence counsel] had got a copy of O'Connell v Adams, from the 1973 Criminal Law Reports page 113. From the earlier argument that he had made he was able to add that whilst O'Connell v Adams states that in summary trial for witnesses not challenged that does not mean the justices must accept the evidence. On further reading it was noted that the reason for this was that in summary proceedings the defendants are not always 'represented by a person who is a highly qualified professional advocate', and moreover, the presumption is often that matters are heard in Magistrates' Courts by an unqualified Tribunal. But in this case there was a district judge and clearly the appellant was represented by a barrister. The prosecution by a very experienced agent. "I returned at the end of the case to consider the evidence that I felt that the only person not cross-examined was the appellant. She had heard the entire prosecution case and her barrister had cross-examined all the witnesses produced on behalf of the Crown. When it came to the defence case the appellant was simply called and asked to confirm on oath that the statement under caution she had made to the police was true. No further evidence was produced in chief. Bearing in mind these factors, I did not feel the appellant had been in any way disadvantaged by not being cross-examined. The prosecutor appeared in effect to have left the decision to the court. It was satisfied on the evidence which had been called, to which there was a clear conflict with the appellant's statement under caution, and the case was proved beyond any doubt and in the circumstances convicted the appellant. He stated the following questions for the opinion of the High Court: 1. Was I correct, in law, to rule that I was not bound to accept the evidence of Mrs Wilkinson, given that the prosecutor did not cross-examine her and bearing in mind that I am a qualified judge hearing a case prosecuted by a professional advocate? 2. Was I correct, in law, to convict Mrs Wilkinson in the above circumstances when her unchallenged evidence would have amounted to a defence, albeit the only evidence called was Mrs Wilkinson confirming on oath her statement under caution which amounted to a denial?"[3]This case therefore raises issues as to the proper conduct of a prosecution by the advocate acting on its behalf, and as to the position of the judge where there is no cross-examination of a defendant in the circumstances of the present case. It is important, in my judgment, to distinguish between the professional obligations of the advocates appearing before the court and the position of the court itself. It is undoubtedly the professional obligation of an advocate acting for the defence to put to prosecution witnesses conflicts between the defence case and the evidence given by the prosecution witness in question in order to give the prosecution witness an opportunity to comment on what is put: Whether it is the possibility of a mistake or whether it is that the prosecution witness is lying, whether his recollection is incorrect, whether he has been confused or whatever. The position in relation to the defence case is somewhat different. By the time the defence comes to give evidence, the prosecution evidence has been given, the defence are aware of what evidence has been given and the defence are able, therefore, in chief, to ask witnesses whether or not they agree with prosecution evidence and to comment on it. It is nonetheless the professional duty of the advocate acting for the defence to make it clear what evidence is rejected or disputed. That is particularly important where a trial takes place before a jury. It is less important where the trial takes place before a professional legally qualified judge who may be expected to be aware of what the issues are in a case.[4]At the beginning of this judgment I distinguished between position of the advocates acting in a criminal case and that of the judge. The judge of fact is entitled to reject evidence even if not cross-examined, whether that evidence is prosecution evidence or defence evidence. In deciding to do so he must take into account the fact that the witness has not had an opportunity to comment on the contrary case which might have been put to him in cross-examination. It will normally be appropriate for the point in issue to be expressly raised with the witness, but of course the judge must not descend into the arena and become either defence counsel or prosecution counsel by proxy. Those are the general principles as I concede them to be.[5]Counsel have referred me to relatively few authorities on the questions raised by the case stated, and it is at least interesting and possibly significant that there are so few authorities on the questions I now have to consider. In the case of R v Hart [1932] Cr App 202, there had been a jury trial in a case in which alibi witnesses had been called and not cross-examined. Lord Hewitt CJ said this:
"A remarkable feature of the case was that three of the witnesses for the defence -- Dearing, Bishop and the appellant's wife -- were not cross-examined. If the jury accepted their evidence, it appears to be physically impossible that the appellant could have been at the spot in Trinity Road, Wandsworth, at the time of the assault on the warder. In other words, none of the witnesses was given the opportunity of dealing with any objections by the prosecution to their evidence-in-chief. Nevertheless, when the trial approached its close, the jury were invited by the prosecution to disbelieve these witnesses. Without disbelieving them the jury could not have found that the appellant was present at and took part in the assault. "
Our attention has been directed to the summing-up, but in no passage did the Common Serjeant mention the fact that these three witnesses were left without being cross-examined. Although it was, undoubtedly, explained to the jury that the defence was an alibi, nowhere were they clearly told what the difficulties of the prosecution must be if the evidence of Dearing, Bishop and Mrs Hart should be accepted. Counsel for the Crown, in the exercise of his discretion, had given these witnesses the 'go-by', but the Common Serjeant did not formulate the difficulties arising from the conflict of evidence with regard to time, nor was the fact that the witnesses were not cross-examined mentioned. "In our opinion, if, on the crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain while the witness is in the box that his evidence is not accepted. Here no questions were asked in cross-examination. Having regard to that matter, and also to the summing-up, we have come to the conclusion that the conviction was unsatisfactory and cannot stand, and the appeal ought to be allowed."[6]I note that Lord Hewitt did not, in that judgment, require cross-examination in all cases. He required that the witness be challenged in the witness box or:
"at any rate that it should be made plain while the witness is in the box that his evidence is not accepted"
. In the present case, of course, there was no cross-examination, but it must have been evident while the witness was in the witness box -- that is to say, while the appellant was in the witness box -- that what she said in the witness box, brief as it was, was not accepted, since otherwise the prosecution would not have been brought and it would not have continued. I do not read that judgment, therefore, as requiring the district judge in the circumstances of the present case to accept the evidence of the appellant.[7]In O'Connell v Adams [1973] Crim LR 113, the appellant had been convicted of robbery. The issue was one of identification. The defence called witnesses, none of whom was cross-examined by the prosecuting police officer, nor did the justices question any witness to indicate that evidence was not being accepted. The justices convicted the defendant. The defendant contended that since the defence witnesses were not challenged by either the prosecution or by the justices, the justices were bound to accept the unchallenged evidence as credible. On appeal by the defendant, the court held, according to the brief note in the Criminal Law Review dismissing the appeal -- "If it was part of the client's case to challenge a witness as not speaking the truth at a trial on indictment, the professional advocate had to put the matter fully and fairly to the witness and, if that was not done and the advocate in his speech tried to rely on the falsity of the witness's evidence, the court should check him at once. However, in Magistrates' Courts frequently one party was represented by a person who was not a highly qualified professional advocate and was insufficiently skilled to appreciate the necessity of putting such matters to a witness for the other side. Any suggestion that the justices should do so was to be totally deplored. It was not the general practice, certainly it was not to be encouraged, that justices should interfere with proceedings in the same way as a professional judge very frequently could. To suggest that justices should give some indication they were not believing the evidence would be quite contrary to the general practice in their courts, and would be thoroughly undesirable . . . it could not be said, as a matter of law, that justices must accept a witness's evidence merely because it was unchallenged."[8]Save as to the qualification in respect of trials in which professional advocates appear, that judgment is consistent with the general principles I have already referred to. In Lister v Quaife [1983] 1 WLR 48, the Divisional Court considered the position in relation to witnesses who were not called but whose statements were read in court without objection by the defendant. It followed that they had not been cross-examined. The question for the court was whether, in those circumstances, the judge of fact was bound to accept the evidence contained in the witness statement. The court said this:
"We have not found this at all an easy case, but in the end we have come to the clear conclusion that the answer really lies in a proper appreciation of what section 9 of the Criminal Justice Act 1967 in fact achieves. As I have already said, this is that the contents of the statements read are evidence in the case just as if, and only to the extent as if, the makers of those statements had been called as witnesses in the trial and had given the evidence contained in the statements. If that had happened on the hearing before the King's Lynn justices in this case, and there had been no cross-examination about the possibility of a mistake, or their evidence had not been challenged in any way, then when the defendant went into the witness box, no doubt strong comment could have been made that nothing had been put to the witnesses about the possibility that the defendant might indeed have been able to and did buy the dress somewhere else, in Portsmouth in particular, on July 2 1981. Although any such comment by the prosecutor would have had substantial force and might well have led the justices to view the defendant's evidence with a degree of scepticism, the position remains that the burden throughout was on the prosecutor and although the proper procedure of putting a defence case to prosecution witnesses had not been followed, it would have been opened to the justices, having heard all three witnesses, to have said: 'Well, it may be that that procedure laid down by Marks & Spencer was what should have happened, and it may have happened in at least the majority, if not every other case concerning a dress of this nature, but we have also seen the defendant. She has given evidence. We cannot say that her evidence cannot be true, and in those circumstances, there must be a doubt in our minds and accordingly we must acquit.' If one realises that that is all that is achieved by a section 9 statement, then notwithstanding that criticism may be made of the fact the defendant's legal advisers did not give any appropriate notice requiring the makers of the statements to attend at the trial, we do not think that in the end it is right to say that the two halves of that opinion of the justices are necessarily inconsistent and the decision perverse."
[9]May LJ, extracts from whose judgment I have just read, continued as follows. "I take the view that legal representatives of defendants in criminal cases, whether before the justices or indeed in the Crown Court, should observe the well-known practice that you do put your case to witnesses for the prosecution, and the failure to give a notice under section 92(d) is not to be used as any sort of device whereby you can have the defendant present, giving evidence in person, and avoid the presence of the witnesses whose statements under section 9 have been served, and merely hear those statements read out in court . . . "For the reasons which I have given in the circumstances of the present case, I do not think that it can be said that the justices came to a perverse conclusion. They were entitled to say that the defendant's evidence had raised a doubt in their minds, and if there was such a doubt then she has to be acquitted." Stephen Brown J agreed with the judgment of May LJ.[10]Again, it seems to me that case is authority for the proposition that a failure by advocates to comply with their professional duty does not necessarily lead to the acceptance of the evidence put forward by the opposing party.[11]Lastly I was referred to R v Wood Green Crown Court ex parte Taylor. In that case the applicant sought judicial review of the dismissal of his appeal against conviction on the ground the judge wrongly decided to proceed with the hearing of the appeal in the absence of prosecuting counsel and having, in effect, conducted the prosecution case himself. The applicant had given evidence which was untested and unchallenged. Although prosecution counsel had by then arrived, the judge did not permit cross-examination of the applicant. The application for judicial review succeeded, according to the summary in the 1995 Criminal Law Review 879, on the basis that there had been a material irregularity. The impression had been given that the judge had descended into the arena, with the result that justice was not seen to be done. The judge had tried to remain fair, but the mischief was shown by the fact that the applicant's evidence that he did not understand that failure to supply a specimen of breath was an offence was never challenged, and could be assumed by his advocate not to be an issue, and yet the court, by the finding of guilt, in effect, rejected it.[12]The report of that case is consistent with the principles I have referred to earlier in this judgment. In that case the irregularity consisted of the judge effectively descending into the arena, and giving the impression that evidence had been accepted when it was not. It appears, according to the commentary in the Criminal Law Review, that in response to the applicant's further submission that his evidence, being unchallenged, should not have been disbelieved, the court approved the passage in Blackstone to the effect that a party who fails to cross-examine a witness upon a particular matter in respect of which it is intended to contradict him or impeach his credit by calling other witnesses, tacitly accepts the truth of the witnesses evidence in chief of the matter.[13]In my judgment, the substantial questions in this case are whether the trial was fair and whether the appellant was in any way disadvantaged by the failure of the prosecution to cross-examine her. For reasons I have already given, I have come to the conclusion that the district judge was not compelled to accept the evidence of the appellant. So far as the fairness of the trial is concerned, as he pointed out, this was a case where the evidence against her and the facts alleged by the prosecution were known. She had been questioned on the audio tape. She had had an opportunity, through her counsel, to give live evidence.[14]In my judgment, there is, in those circumstances, nothing to show that the trial itself was unfair or that the district judge was wrong to come to the conclusion that the appellant had not been disadvantaged. The procedure adopted by counsel on behalf of the appellant was unusual and no doubt it was that which lead to the absence of cross-examination.[15]For the reasons I have given, I have concluded that the district judge was free to accept or to reject any of the evidence that was before him.[16]I would answer, therefore, the first question for the opinion of the High Court affirmatively, and I would similarly answer question two affirmatively. I would nonetheless emphasise that it is the professional duty of prosecutors to make it clear to a defendant while he or she is in the witness box that the case is disputed so as to give them an opportunity to enlarge upon, or explain, any matters which have been referred to in evidence. The circumstances of this case were unusual, I therefore do not need to comment further on the conduct by the advocates in question. For the reasons I have given, the appeal will be dismissed.[17]MR RICKARBY: My Lord, there is also the question of costs of the respondent to this appeal.

MR JUSTICE STANLEY BURNTON: Is this a privately funded appeal?

[19]MR RICKARBY: I am not sure the position of the appellant. I represent the CPS in Birmingham, I do not have an exact figure for costs.[20]MR JUSTICE STANLEY BURNTON: If she is legally aided it is not normally appropriate to make an order for costs.[21]MR RICKARBY: My instructions are to apply for costs. It is for the court to decide whether to make such an order.[22]MR JUSTICE STANLEY BURNTON: I do not think it is appropriate to make an order for costs in this case.[23]MR RICKARBY: I am obliged.

MR JUSTICE STANLEY BURNTON: Thank you both very much.