Director of Public Prosecutions, R (on the application of) v Kipling [2005] EWHC 854 (Admin)

Case No CO/5813/2004[2005] EWHC 854 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 25th April 2005
Strand
London WC2
B E F O R E:
MR JUSTICE OWEN
Between
THE QUEEN ON THE APPLICATION OF DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
KIPLINGDefendant
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 SIMON KEALEY (instructed by the CPS, North Yorkshire) appeared for CLAIMANTMR JAMES KEELEY (instructed by Messrs Bedwell Watts & Co) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE OWEN: This is an appeal by way of case stated from a decision of the North Yorkshire Justices sitting at the Scarborough Youth Court on 20th July 2004, dismissing a charge of indecent assault brought against the respondent.[2]The facts found by the Justices are succinctly summarised in the case stated. They are as follows. At about 2.45 pm on 4th March 2004 the complainant, a female aged 17 years, left Airy Hill School in Whitby intending to walk to Whitby Community College to meet a friend. As she walked along she heard a noise behind her, turned around and saw a male person, aged approximately 17 or 18 years, whom she did not recognise. She gave a description of the youth, which is it is not necessary to rehearse for present purposes. The youth pulled her to the ground and attempted to pull down her trousers. She struggled and the youth eventually got up, and told her not to say anything to another girl, whom he had seen approaching, and who knew who he was. He then left the scene.[3]The girl whom the youth had seen approaching was Cheryl Cook, an A-level student at Whitby Community College who did not at the time know the complainant. As she walked towards the scene of the incident, she saw two people walking towards her from near a wooded area: the male person, whom she knew only as Kipling, followed by a female, the complainant, who told her what had happened. Miss Cook then accompanied the complainant to the Whitby Community College and the police were called.[4]The Justices found that Miss Cook had known the youth for some seven years, although she did not then know his first name. She had never previously spoken to him. She knew him as a person who normally wore glasses. The respondent was arrested and interviewed by the police under caution on 5th March 2004, the day after the incident in question. Although he admitted being in the general vicinity of the incident on the previous day, he gave an explanation of his movements which, if correct, would have placed him elsewhere at the time of the offence. Through his solicitors he served notice on the appellant on 19th May 2004 detailing his defence statement and notice of alibi.[5]On 16th March, twelve days after the incident, the complainant was shown nine images on a computer by the police as part of an identification process. After looking at the images twice she picked out numbers 4 and 7, and then purported to identify number 7, which was a picture of the respondent. On the same day Miss Cook was shown nine images as part of an identification process, and after viewing the images twice she picked out number 7 as a picture of the respondent.[6]The case stated by the Justices also contains a list of the witnesses who gave evidence and a summary of their evidence. The complainant gave evidence the thrust of which I have already set out in the facts as found by the Justices; so too did the witness Miss Cook. The respondent gave evidence in support of his alibi, asserting that he had been picked up by his mother shortly before the incident was alleged to have taken place, was then given a lift home by his mother and, shortly after the time of the alleged incident, was given a further lift by her to the barber. His mother similarly gave evidence that she had picked up the respondent shortly before the time of the alleged attack and taken him to a barber shortly afterwards.[7]The Justices' legal adviser referred the Justices to the model directions contained in the Magistrates Legal Adviser Manual relating to alibi and to identification. The directions provide that where the defence is one of alibi:
"The defendant says that he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, the defendant does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi."
[8]No fault can be found with that direction. Paragraph 6 of the case stated is in the following terms:
"We were of the opinion "i) that the duty cast upon the appellant to prove the case against the respondent beyond reasonable doubt was in the circumstances two-fold: "a) to prove all the requisite ingredients of the offence according to the normal criminal standard; and "b) as part of the continuing burden of proof cast upon the appellant, to rebut credible alibi evidence put forward by the respondent. "ii) that whereas the evidence called by the appellant would have amounted to sufficient proof that the offence had been committed by the respondent (and indeed we believed the identification of the respondent by [the complainant] and Cheryl Cook) the inability of the appellant to rebut the respondent's alibi evidence to our satisfaction meant that we were obliged to find for the respondent and accordingly we dismissed the said information."
[9]The question posed for the opinion of this court is in the following terms:
"Given that we believed the evidence adduced by the appellant, both as to the offence which took place and as to the identity of the respondent as the perpetrator, were we correct in dismissing the information upon the basis that the appellant had failed to rebut credible evidence of an alibi."
[10]The answer to that question is that the Justices were not correct in dismissing the information on that basis. Their conclusion is simply irrational. If satisfied to the requisite standard that the complainant had been indecently assaulted and that it was the respondent who had assaulted her, the case was proved. If, as was the case, they believed the identification evidence from the complainant and from Cheryl Cook, then it necessarily followed that the Crown had discharged the burden of disproving the alibi.[11]Accordingly, the Justices' reasoning was fundamentally flawed and this appeal must be allowed and the matter remitted to the Justices with a direction to convict.[12]MR KEELEY: My Lord, just in relation to your Lordship's direction in respect of a direction to convict.

MR JUSTICE OWEN: Yes.

[14]MR KEELEY: In my submission, as I understand the position, your Lordship's power is not simply confined to that, is it not? Your Lordship could, and bearing in mind the age of this young man and what happened during that trial, your Lordship does have power as to order a retrial of the matter in front of a different bench. In my respectful submission that, perhaps, would be the fairest way of disposing with the appellant's appeal at this stage.

MR JUSTICE OWEN: Yes, Mr Kealey, what do you say to that?

[16]MR KEALEY: The magistrates have heard the evidence once, they have come to conclusions, and it is simply their reasoning at the conclusion of those findings of fact that this court has corrected. In my submission the correct approach is as your Lordship has already directed: to reverse the decision they have made and to come to the conclusion they should have come to, having made those findings of fact.[17]MR JUSTICE OWEN: Yes. Mr Keeley, I am satisfied that the Justices have made the appropriate necessary findings of fact and, in those circumstances, the appropriate remedy in this court is to remit the case to the magistrates with the direction to convict.[18]I am grateful to you for your assistance. You have said all that could conceivably have been said on behalf of the respondent in seeking to uphold this decision, but regrettably it was manifestly misconceived. Thank you.