Barber v Crown Prosecution Service [2004] EWHC 2605 (Admin)

Case No CO/3861/2004[2004] EWHC 2605 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 25 October 2004
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE FORBES
B E T W E E N:
ANTHONY BARBER
- v -
CROWN PROSECUTION SERVICE
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
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MR GRAHAM CLIFF (instructed by Messrs Kieran & Co, Worcester WR1)
appeared on behalf of THE APPELLANT
MR ADAM WEITZMAN (instructed by the Crown Prosecution Service,
West Mercia Area) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Between
BarberClaimantCrown Prosecution ServiceDefendant
[1]This is an appeal by way of case stated ("the Case") from the decision Of the South Worcestershire Justices, whereby on 16 April 2004 they convicted the appellant of the following offence, namely that on the 4th day of December 2003 he had acted in breach of a restraining order made under the Protection from Harassment Act 1997 by the South Worcestershire Magistrates' Court on 13 March 2003: that without reasonable excuse he played loud music on 5 December 2003 at Ravenshill, Lusley, Knightwick, Worcester, contrary to section 5(5) of that Act.[2]According to paragraphs 2.1 to 2.6 of the Case, on 4 December 2003 Mr and Mrs Prosser and their daughter (the parties with the benefit of the restraining order) were caused distress by reason of loud music that came from the appellant's premises from about 10.30pm on 4 December 2003. The music in question had, amongst other offensive characteristics, a strong bass noise. As a result of the loud music Mr and Mrs Prosser informed the police. Police attended the premises. The loud music was heard by WPC Goose, who described the noise as a "bass, constant drumming irritating sound".[3]The issue which is raised in the Case is whether the prosecution succeeded in proving the existence of the order in question and its terms. On behalf of the appellant Mr Cliff submitted that the prosecution had failed to do so. He submitted that the prosecution had to prove(i) that there was in existence a restraining order,(ii) the terms of that order and(iii) the behaviour which was said to constitute a breach of that order. Mr Cliff submitted that the offence in question was one of strict liability, but that it was fundamental that the prosecution prove the terms of the order in question and that it was current at the time of the alleged offending behaviour. He accepted that this essential ingredient of the case could have been proved in a number of different ways, but submitted that, in the event it had not been proved. At the conclusion of the defence case, it was submitted that the order and its terms had not been proved to the magistrates. The magistrates retired. They considered the matter, returned to court following their deliberations and convicted the appellant. In other words, they concluded that the order had been proved as well as the alleged offending behaviour.[4]Mr Cliff accepted that once the point had been taken that the prosecution had failed to prove an important ingredient in the offence, the prosecution could have sought to re-open their case and to adduce the necessary evidence. Mr Cliff did not accept that such a course was open to the prosecution after the magistrates had retired. In the event it is not necessary to come to any concluded view as to that aspect of Mr Cliff's submission, because the prosecution did not seek to re-open the case and put before the magistrates any further evidence with regard to the order and its terms.[5]The Case sets out succinctly what took place, as follows:
"4. It was contended by the appellant that the prosecution had failed to adduce in evidence the making and the validity of the order of which it was alleged that the appellant was in breach in accordance with rule 68 of the Magistrates' Courts Rules 1981. 5. It was contended by the respondent that the order had been adduced in evidence because: 5.1 The South Worcester Magistrates trying the matter had made the order. 5.2 The order was a court record and it was not necessary to produce it. 5.3 The appellant had been asked in interview whether he recalled the order and its terms. 5.4 The full terms of the order had been read out to the appellant in interview. 5.5 The witnesses had referred to the existence of the order in the course of their evidence."
[6]In paragraph 7 of the Case the magistrates explained how they reached their conclusion, as follows:
"We were of the opinion that: 7.1 We as Justices were not required to have produced to us a copy or court extract of the Restraining Order in order to be satisfied that it had validly been made as provided by Rule 68 of the Magistrates' Courts Rules 1981. The prosecution did not produce documentary evidence of the order but we were of the opinion that it was a public document being a matter of court record and an order made by the Worcestershire Magistrates' Court. 7.2 We were of the opinion that the breach of a Restraining Order contrary to section 5(5) Protection from Harassment Act 1997 is a criminal offence and the burden on the prosecution is to the criminal standard. The cases cited on behalf of the appellant were cases of strict liability. In those cases it was held that because they did not require proof of mens rea the offence was complete when the breach was established and therefore additional evidence as to knowledge, motive and intention were not admissible. In our opinion as the statute had not specified that an offence under section 5(5) was one of strict liability we were required to receive evidence of mens rea. We therefore concluded that the evidence contained in the interview of PC Naulls with the appellant, as adduced by the prosecution, was admissible as to the defendants's knowledge of the order. 7.3 The evidence of PC Naulls stating the terms of the order, taken together with the evidence of Stephen Prosser, Rowan Prosser and WPC Goose, satisfied us of the existence of the order and its terms. The appellant did not challenge any of the prosecution witnesses when they gave evidence in relation to the existence or terms of the order and the appellant did not give evidence. And accordingly we accepted that the order had been properly proved. As a consequence of the findings above we found the appellant guilty of an offence contrary to section 5(5) Protection from Harassment Act 1997 and we sentenced him to a fine of £50 and £50 costs."
[7]It is clear from paragraph 7.2 of the Case that the magistrates' fell into error to some extent in regarding the evidence of the questions and answers given in interview as relevant to the issue of mens rea. It is common ground between the appellant and the respondent that the offence in question is one of strict liability. It did not require proof of mens rea. However, the evidence to which the magistrates referred in paragraph 7.2, in particular the evidence of the questions and answers given in interview, was admissible evidence because it was capable of amounting to a confession within the terms of section 76 of the Police and Criminal Evidence Act 1984. That section provides as follows:
"Confessions (1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section."
[8]Stated shortly, some of the appellant's answers to questions posed in the course of his police interview were capable of amounting to an admission or confession of the existence and the terms of the order in question, thus proving the terms of the order and the fact of its existence by that means. It is common ground between the appellant and the respondent that one of the ways in which the order and its terms could have been proved to the magistrates would have been by means of an admission. In my judgment, that admission could emerge from the course of the interview conducted by the police officer in this case. The officer, PC Naulls, gave evidence before the magistrates of the terms of the interview and produced the original handwritten record of that interview.[9]In this appeal as it seems to me the issue descends to this simple proposition: Did the appellant admit the fact of the order in question and its terms during the course of the interview conducted by the police officer? If the answer to that is "Yes", then (as it seems to me) that would constitute sufficient evidence to found a conclusion by the magistrates that the order and its terms had been proved to the necessary criminal standard of proof required in such a case.[10]I therefore turn to the relevant parts of the interview. The officer asked:
"Mr Barber, on 13 March this year there was a Restraining Order placed upon you. Do you remember what we call that Restraining Order? THE APPELLANT: Well I do and I don't, because I -- just going through rough times. Still, go on. PC NAULLS: Do you know what the order actually stipulates? THE APPELLANT: It stated that I wasn't supposed to speak or have anything to do with the Prosser family. PC NAULLS: This order hereby prohibits you from making any excessive noise to the distress or inconvenience of Stephen, Rowan and Robyn Prosser for a period of 18 months."
In my view, that exchange between the police officer and the appellant was clearly capable of being found to be an admission by the appellant that a restraining order in favour of Mr and Mrs Prosser had been made on 13 March 2004. Furthermore, although the appellant did not accurately recite the terms of the order, the terms were read out to him clearly and accurately in a way that left no doubt as to what the order said, including the fact that it ran for a period of eighteen months from 13 March 2004. That was not disputed by the appellant. The officer then proceeded to ask further questions. A little later in the interview, the following exchanges took place:
"MR DUNCAN [The appellant's solicitor] I think what he's, just to go back a bit, what he's saying about the Restraining Order is he thought that when the court case was finished. PC NAULLS: That was also lifted. MR DUNCAN: Yeah, because everything was dropped at Court. Am I right? Your understanding order was that the Restraining Order was gone. So you're saying that it was a misunderstanding. THE APPELLANT: Well, I think so. I didn't realise. PC NAULLS: Well, obviously your solicitor should have pointed out to you, although those particular cases were dropped, the Restraining Order was still in place. THE APPELLANT: I wasn't under that impression. Not guilty, not guilty. PC NAULLS: As I say, that Restraining Order was taken out on 13 March for a period of 18 months -- until September next year."
After a short further explanation by the officer, the appellant then said:
"Yeah, I suppose you are right."
What emerges from the latter series of exchanges is that the appellant was saying that he believed at the relevant time that the order had been brought to an end by the magistrates who had dealt with earlier allegations that he was in breach of the order. That was a reference to earlier proceedings for breach of the order which the appellant had successfully defended in the magistrates' court. In the course of his police interview the appellant was not saying that the order had not existed, nor that the order was different in its terms to those of the officer had reminded him in full, but rather that at the relevant time it was his understanding that the order had been brought to an end.[11]As it seems to me, to the extent that there is any ambiguity as to what the appellant was saying about the order in this case, it was as to whether the order was still in force at the time the allegedly offending behaviour took place. I accept Mr Weitzman's submission on behalf of the respondent that, if that was capable of giving rise to any issue in the case that had to be decided by the magistrates, it could only have been as a foundation for a submission that the appellant had a reasonable excuse for behaving as he did -- in other words, that he had a statutory defence to the charge that he faced.[12]However, the appellant did not give evidence. Rather it was said that the Crown had failed to prove its case.[13]As it seems to me, taken as a whole the appellant's police interview was capable of amounting to evidence from which the magistrates could conclude that the appellant had admitted the fact of the order having been made on the date in question and the terms of the order, which included a term that the order was to continue for a period of eighteen months. The magistrates clearly came to that conclusion. That much is apparent from paragraph 7.3 of the case to which I have already referred. As it seems to me, therefore, the magistrates heard evidence that was both admissible and capable of amounting to an admission by the appellant (defendant as he then was) as to the terms of the order and as to the fact that the order, as originally made, had been for a period of eighteen months. On the basis of that evidence, the magistrates were satisfied that the order had been made and contained the terms in question. They were entitled to come to that conclusion, having regard to the way in which the appellant had answered questions in the course of his interview. Therefore I am satisfied that the magistrates were entitled to come to conclusion that this essential ingredient of the prosecution case had been proved.[14]The other ingredient of the offending behaviour was also open to them on the evidence that they had heard. There is no challenge as to that aspect of the magistrates' conclusion.[15]I therefore turn to the questions that were posed in the case by the magistrates. The questions are expressed as follows:
"a. Is the offence of being in breach of a Restraining Order, contrary to section 5(5) of the Protection from Harassment Act 1997, an offence of strict liability?"
To that I would answer "Yes". "b. Was it necessary for the prosecution to formally prove the Restraining Order in accordance with Rule 68 of the Magistrates' Court Rules 1981 in order to prove the case against the appellant?" To that I would answer that the word "formally" is inappropriate. It was necessary for the prosecution properly to prove the restraining order in question. That proof could take a number of different forms, including producing a formal certified copy of the entry in the register. However, it was also open to the prosecution to prove the order in question by means of admissible evidence such as an admission by the appellant. This they did in the way to which I have referred earlier in this judgment. "c. Did the prosecution adduce any admissible evidence to prove the existence of the order to satisfy the burden of proof?" To that I would answer:
"Yes, see above." "d. Were the Justices, on the evidence adduced entitled to be satisfied that the evidence of the order had been proved?"
To that I would answer: "Yes, see above".[16]For those reasons this appeal is dismissed.[17]MR CLIFF: My Lord, can I apply for Legal Services Commission taxation?[18]MR JUSTICE FORBES: You have a representation order apparently. Thank you for your help. ____________________________________