Director of Public Prosecutions, R (on the application of) v Kavanagh [2005] EWHC 820 (Admin)

Case No CO/5483/2004[2005] EWHC 820 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 22nd April 2005
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
SHAUN KAVANAGHDefendant
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)
MRS J NEEDHAM (instructed by CPS EALING/HARROW) appeared for CLAIMANTMISS H HOPE (instructed by MESSRS VICKERS & CO) appeared for DEFENDANT
J U D G M E N TFriday, 22nd April 2005
[1]MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from a decision of the justices of the Ealing Petty Sessions Area, sitting as a Magistrates' Court in West Ealing, and subsequently at the Magistrates' Court in Acton, who, on 3rd August 2004, acquitted Sean Kavanagh, the respondent, of one offence of assaulting a police officer in the execution of his duty.[2]The assault alleged, on the prosecution case, took place at the respondent's home in West Ealing. There had been a 999 call earlier on the evening of 20th January 2004 from the respondent's younger brother who was clearly sufficiently frightened by a fight between the respondent and another brother, Aaron, to call the police. The police attended, matters seemed to have quietened down and they left, but two officers received a further call to come back to the premises. Other officers attended in addition. They entered the house, spoke to the younger brother, James, aged 14, and to Aaron, the second brother, went up to the respondent who was upstairs on the landing, and, according to the prosecution evidence, he was inebriated.[3]There was then an altercation between the respondent and two officers, PCs Hayward and Tagg, which led to the respondent being handcuffed. In the course of that altercation the respondent's head came into contact with PC Hayward's head. That altercation, which involved further violence on the prosecution case, led to the respondent being charged with an assault in the execution of the officer's duty. He was taken to the police station and interviewed.[4]The trial took place over two days. A number of police officers gave evidence. PC Hayward, the alleged victim of the head-butting assault, gave evidence, in the course of which he said that on the landing, during the struggle, the respondent:
"...looked at him rocked his head back and lunged at him and connected with his head. It was a deliberate act. The respondent continued to struggle and pulled back into a small window and smashed it."
In cross-examination PC Hayward repeated that the respondent made a blatant and deliberate head-butt.[5]PC Tagg also gave evidence. His evidence in chief was that the respondent went to head-butt PC Hayward who ducked but was caught on the head. PC Tagg "confirmed that the respondent had moved his head back and forward. He carried on being abusive." In cross-examination PC Tagg rejected the suggestion that the respondent's connection with PC Hayward's head was an involuntary act or that it was accidental.[6]The respondent's mother gave evidence. She said that she was not in a position, having been absent, to give evidence in relation to the incident itself, but she "did confirm her concerns about the respondent as he had been suffering from depression and had spent 1 year on medication although he was no longer on it."[7]The respondent did not give evidence at the trial. The magistrates, as I have said, acquitted him. I have a note on what they said at the time, but that is not part of the case stated. The correct procedure for that to have been incorporated in the case stated would have been for it to have been presented to the magistrates for them to consider by way of amendment to their draft case stated. Had they had an opportunity to consider it and if there were no issue as to the content of that note, it would have been open to this court to have caused the case stated to be amended so as to incorporate it. In the end I have concluded that it is unnecessary to do so, and probably inappropriate given the lack of opportunity to the respondent to consider its incorporation and correctness, and I can deal with this case on the basis of the formal case stated.[8]The magistrates' findings of fact set out the events prior to the officers attending Denmark Road on the second occasion and continued as follows:
"(d) The respondent was upstairs on the landing and he was intoxicated. PC Tagg went upstairs followed by PC Hayward. The officers spoke to the respondent and they found him aggressive and he swore at them. The respondent had red marks on his neck. "(e) PC Hayward decided to arrest the respondent for a breach of the peace. PC Tagg placed a handcuff on the respondent's left wrist and a struggle ensued. The respondent tried to pull away and his connected with the head of PC Hayward. PC Hayward had a small swelling on his skull that lasted 2 to 3 days. "(f) A struggle continued between the respondent and the officers who were trying to restrain him and the respondent went backwards into a small window and smashed it causing him injury."
Then they refer to the fact that the respondent was escorted downstairs and taken by police van to the police station.[9]Although it is not entirely clear, the finding in paragraph (e) would appear to be that the contact between the respondent's head and that of PC Hayward was accidental.[10]There were two issues for the magistrates to consider in this case. The first was whether there was an assault as alleged by the prosecution, namely a head-butt. The second was whether, if that assault took place, the officer was acting in the execution of his duty. I, of course, refer to PC Hayward, although it would be difficult to see that he was acting in the execution of his duty unless PC Tagg was also doing so.[11]The magistrates in the case stated refer to the submissions made to them. They say:
"It was contended by the respondent by way of final submissions that it was for the Bench to determine if the officers were exceeding their authority to enter the house on the second call. Further it was for the Bench to determine if the police acted in a reasonable way or did they overreact in the circumstances and as a result exacerbate the situation."
[12]They set out the advice given by their legal adviser:
"(a) That the wording of the information required that in order for the respondent to be guilty the Court must be satisfied beyond a reasonable doubt that the officers were acting in the execution of their duty and that an assault had taken place. "(b) The burden of proof remains on the Crown throughout. "(c) The assault element of the charge could either be intentional or reckless. "(d) The Bench may draw such inferences as appear proper from a failure by the respondent to give evidence (S35 Criminal Justice and Public Order Act 1994)."
[13]In paragraph 6 of the case stated they say:
"(a) It would be unfair to draw inferences from the accused silence at trial as he seemed quite depressed and we were warned by his solicitor that he may not give evidence. "(b) On the evidence put before us we did not think that the respondent acted intentionally when his head struck Police Constable Hayward's. It was our view that the officers appeared rather over zealous in their duties, no one had been injured and there was no weapon. The respondent was in his underpants and the whole incident took a matter of seconds. Further we did not consider recklessness to be an option as it appeared to be more like an unfortunate accident. "
Accordingly we found the respondent not guilty and dismissed the allegation."[14]The questions asked for the opinion of the High Court are:
"1. Were we right to decide that the defendant did not act deliberately, as the defence did not call any evidence to rebut the evidence of the two police officers? "2. Where we right not to consider that the defendant had acted recklessly? "3. Were we right not to draw any inference from the defendant's silence at trial? "4. Were we right to make the findings we did from the evidence, as the evidence of the police officers was clear that PC Hayward had been assaulted and the defence called no evidence to negate this?"
[15]The first question to consider is whether the justices were entitled not to draw inferences from the accused's silences at trial. Section 35(1) is in clear terms:
"(1) At the trial of any person for an offence, subsections (2) and (3) below apply unless - (a) the accused's guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; But subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence."
[16]The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection (1)(b) refers; that is to say, whether the physical or mental condition of the accused makes it undesirable for him to give evidence.[17]Two things, however, are to be noted. The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence (see R v Cowan [1996] QB 373). A statement or a submission by an advocate does not constitute evidence at all, let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence.[18]The second point is that it is not sufficient that the defendant suffers from some physical or mental condition. The mental condition must be such that makes it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence, for example, is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence. Many, if not most, difficulties that a defendant, or indeed any other witness, may have in giving evidence, are matters to be taken into account by the judge of fact, be it magistrates or a jury, in assessing the reliability of his evidence. It does not justify a comprehensive failure to give evidence. It may go as to the weight of evidence, not as to the decision whether or not it is undesirable for him to give evidence.[19]Secondly, the court will draw an inference against a defendant in circumstances where, to use the language of the standard direction, (a) the prosecution's case is so strong that it clearly calls for an answer by him, and (b), that the only sensible explanation for his silence is that he has no answer or none that would bear examination.[20]In the present case the evidence of the police officers was clear, as the magistrates say in the case stated. That being so, the prosecution's case clearly was sufficiently strong to call for an answer.[21]The question then arises whether there was a sensible explanation for his silence other than that he had no answer. That is an issue which the magistrates did not address, but it is difficult, on the facts of this case, to see that that question sensibly bore any answer other than "no". The reason given by the magistrates in the present case for their not drawing an inference is that:
"It would be unfair to draw inferences from the accused silence at trial as he seemed quite depressed and we were warned by his solicitor that he may not give evidence."
[22]The fact that they were warned by the respondent's solicitor that he might not give evidence was quite irrelevant to the decision to be made by the magistrates under section 35(1)(b). It was neither evidence nor any statement as to the mental or physical condition of the accused.[23]The only other evidence of his physical or mental condition that was before the magistrates was that of his mother to which I have referred. That was wholly inadequate to justify a court rationally coming to the conclusion that his physical or mental condition, as at the date of trial, made it undesirable for him to give evidence. I say that because although his mother said that he was depressed, he was no longer taking medication for that depression. There was, so far as appears from the case stated, no medical evidence. Although one does not expect, on a trial of a relatively minor offence before magistrates, for there to be live expert evidence in all cases, it must be doubtful whether the evidence of Mrs Kavanagh, on any basis, would have been sufficient for the purposes of section 35(1)(b). But the actual evidence she gave, in any event, was insufficient.[24]Moreover, there is nothing to suggest that the magistrates asked themselves the right question under section 35(1)(b), namely whether such evidence as they had as to the physical or mental condition of the respondent made it undesirable for him to give evidence. It seems to me that was not a question they could have answered affirmatively.[25]The magistrates then took into account that scintilla of evidence in deciding that it would be unfair to draw inferences from the silence of the respondent. It is unclear from the case stated whether they were then acting, in making their decision, under section 35(1)(b), or that they were exercising the discretion under section 35(2) to draw such inferences as appeared proper from his failure to give evidence.[26]Again, the judge of fact has a wide discretion as to what inferences appear proper to draw from a failure to give evidence. However, it is difficult to see, in circumstances in which there is no evidence justifying a conclusion that it is undesirable for the defendant to give evidence, not to draw some adverse inference. Indeed, the reason given by the magistrates for not drawing an inference appears to me to be one which was not a proper reason for the conclusion they came to, and certainly insufficient having regard to the evidence they had before them.[27]Leaving that aside, I turn to the question whether the evidence before the magistrates entitled them to find, as they did, that the defendant did not act deliberately. It is difficult, from the case stated, to understand the thought process of the magistrates because they say that the evidence of the police officers was clear, and that evidence was unequivocally that there had been a deliberate head-butting. The magistrates do not suggest that they rejected any of the evidence of the police officers or that they were unsure about the vital evidence, namely the evidence as to what occurred on the landing when the alleged head-butt occurred, and yet they decided, apparently positively, that the defendant did not act deliberately. In other words, they did not say "the evidence did not satisfy us that the defendant acted deliberately". They positively find that he did not act deliberately.[28]That, it seems to me, on the evidence before them, once they accepted the evidence of the police officers, was not rationally a finding open to them. It was particularly not a finding open to them where there was no positive evidence that the head-butt had been accidental. That was only put in cross-examination.[29]In those circumstances I am bound to answer the questions for the opinion of the High Court as follows: 1. Were the magistrates right to decide that the defendant did not act deliberately as the defendants did not call any evidence to rebut the evidence of the two police officers? The answer is "no". It would have been open to the magistrates to reject the evidence of the police officers or to find that it did not satisfy them beyond reasonable doubt that there had been a deliberate head-butt. They did not take that course and it was not open to them to make a positive finding that the defendant did not act deliberately on the evidence before them. 2. Were they right not to consider the defendant had acted recklessly? That very much depends on the state of the evidence as found by them. The case was put very much as a deliberate head-butt and it is very difficult to see on what basis there was room for a reckless head-butt rather than either a deliberate one or something which was completely accidental happening in the course of a struggle. I therefore propose not to answer that question in the light of the difficulty raised by the case stated as to question 1. 3. Were we right not to draw any inference from the defendant's silence at trial? On the material that is in the case stated, the answer I would put is "no". 4. Were we right to make the findings we did from the evidence as the evidence of the police officers was clear that PC Hayward had been assaulted and the defence called no evidence to negate this? The answer, again, for the reasons I have already given, is "no".[30]In those circumstances the appeal will be allowed subject to any further submissions. The case will be remitted to be heard by a fresh bench of magistrates or by a criminal district judge.

Cited in 2 later judgments