Director of Public Prosecutions v Uddin [2006] EWHC 1523 (Admin)

Case No CO/1432/2005[2006] EWHC 1523 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 8th June 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE MCCOMBE
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSAppellant-v-
Between
SUJAD UDDINRespondent
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 P FIELDS (instructed by CPS Hertfordshire) appeared for APPELLANTMR D HARRIS (instructed by M Y Solicitors, St Albans) appeared for RESPONDENT
J U D G M E N T
[1]MR JUSTICE MCCOMBE: This is an appeal by way of case stated by the Justices for the County of Hertford, acting in and for the Petty Sessional Area of Central Hertfordshire, in respect of their adjudication in this case as a Magistrates' Court sitting at St Albans on 16th September 2004. The appellant is the Director of Public Prosecutions. The respondent is Mr Sujad Uddin.[2]On 20th June 2004 an information was preferred by the appellant against the respondent, charging the respondent with the following offences: namely, taking a vehicle without consent contrary to section 12(1) of the Theft Act 1968, driving while disqualified contrary to section 103(1)(b) of the Road Traffic Act 1988 and using the vehicle without insurance contrary to section 143 of the same Act. To these charges the respondent pleaded not guilty. At the hearing before the Justices on 16th September 2004, the Justices dismissed the information and from that decision the appellant now appeals.[3]The evidence heard by the Justices, as disclosed by their stated case, was as follows.[4]The vehicle in question was owned by Mr David Partridge, and he told the court that it had been stolen from the driveway of his home on the night of 21st-22nd June 2004 after keys had been taken from his house in a burglary. PC William Braisher, an intelligence unit officer of the Hertfordshire Police, was on plain-clothes duty, driving an unmarked police car in St Albans on the following day at about 12.20 pm, that was 23rd June 2004. Traffic was moving slowly in each direction on the road in question. The weather was fine, visibility was good and there was no obstruction to the officer's view. He saw the vehicle in question, which he knew to have been stolen, having been so informed no doubt by his headquarters, and he saw it being driven towards him. His evidence was that he recognised the driver, whom he knew, as being the respondent. His view of the driver was for about five seconds. He reported what he had seen over his radio and drove to the respondent's home, but saw neither him nor the vehicle.[5]At about 12.30 pm other officers sighted the vehicle again but did not see who was driving it. At about 1.23 pm on the same day another officer found the vehicle abandoned at a location about a quarter of a mile from the respondent's home.[6]At 7 am on the following day, 24th June, the respondent was arrested on suspicion of burglary. He was cautioned and made no reply. Later that morning he was further arrested for driving while disqualified; again, when cautioned, he made no reply. He was interviewed by two officers but declined to answer their questions. In particular, for the purposes of the present case, in the course of the interview it was put to him that he had been seen driving the vehicle by PC Braisher, and to that suggestion he made no response.[7]At the close of the prosecution case a submission of no case to answer was made on behalf of the respondent. That submission was rejected by the Justices. Thereupon, the respondent gave no evidence and called no other witnesses.[8]On that material the Justices' case informs the court that they reached the following conclusions:(1) that PC Braisher was an honest witness;(2) that he had prior knowledge of the respondent;(3) that he had the car in view for about five seconds;(4) that his initial attention was drawn to the index number of the car and then to the driver;(5) that the cars were travelling towards each other, but in heavy traffic and, therefore, slowly;(6) that the view of the respondent's face would have been of limited duration;(7) that the view was only slightly more than a fleeting glance;(8) that there was no other evidence to connect the respondent with the vehicle.[9]The Justices noted that the respondent declined to answer questions in interview and had not given evidence at the trial. They reminded themselves of sections 34 and 35 of the Criminal Justice and Public Order Act 1994. They noted that the burden of proof remained with the prosecution and that the requirement was for the prosecution to prove the case "beyond reasonable doubt". The Justices then observed that a defendant retains the right to remain silent and that, as they put it, "an inference on its own cannot prove guilt". In the end, they found the evidence not strong enough to discharge the burden of proof to the requisite standard and accordingly they dismissed the information.[10]The Justices now pose for this court the question whether any reasonable bench of justices, properly directed upon the facts and the law, could have acquitted the respondent. In other words, they ask, was their decision to acquit perverse.[11]On the present appeal it has been argued succinctly, and none the worse for that, by Mr Fields, in both his written and oral argument, that the Justices' decision was perverse. The appellant accepts that there is a heavy onus upon him to persuade the court to answer the question posed in the prosecution's favour: see Bracegirdle v Oxley [1947] KB 349, 353. Mr Fields has also cited a particular passage to us this morning in that case in the judgment of Humphreys J at page 357, where the learned

judge said this:

"... I only desire to say that for a very great number of years, whenever justices have found facts from which only one conclusion can be drawn by reasonable persons honestly applying their minds to the question, and have refused to draw that only conclusion, this court has invariably upset the decision of the justices in the appropriate manner."
Mr Fields' submission is that this case falls within that dictum. Mr Fields equally accepts, however, that the case of R v Turnbull [1977] QB 224 required the Justices to consider the identification evidence with great caution. However, it is then argued that the Justices failed to give sufficient weight to a number of factors: the fact that the identifying witness was a trained police officer; that he recognised the respondent, whom he knew, in clear and unobstructed conditions; that his attention was focused on the vehicle because he knew it was stolen, and that his honest belief is to be seen as reinforced by his immediate reaction to drive to the respondent's home to look to see whether he was there. Moreover, it is submitted, the vehicle was found a little more than a quarter of a mile from the respondent's home about an hour after the "sighting".[12]With respect to this part of the appellant's argument, all the points made, even when looked at cumulatively, are in truth "jury" points. They were matters which the Justices were bound to and no doubt did have in mind in considering the question of whether the evidence had persuaded them of guilt to the requisite standard. They were not so satisfied. Those were matters of fact, but in my view they were entirely within their province and they were entitled to reach the view that, notwithstanding those matters, they were not satisfied of guilt.[13]The remaining points made by the appellant are, first, that the ultimate decision was inconsistent with the finding of a case to answer at the halfway stage of the proceedings, and, secondly, that having found a case to answer, it was perverse for the Justices to acquit in the face of inferences open to them to draw (under sections 34 and 35 of the 1994 Act) from the respondent's silence both in interview and at trial.[14]It is often helpful, in my view, in considering such points to recall the differing roles of the judges of law and of fact respectively in a criminal trial. In considering the submission of no case, the judge of law has to ask whether there is sufficient evidence upon which the judges of fact, properly directed, are entitled to convict. They are not deciding that the tribunal of fact must convict upon such evidence. If the judge decides that there is such evidence the case proceeds. The defence calls such evidence as they wish. If the defendant fails to give evidence the justices or the jury (as the case may be) are entitled to consider, if they think fit, that those facts are additional support for the prosecution case. A similar adverse inference may be drawn against the defendant from a failure to respond to questions in interview. However, the justices or jury must not convict wholly or mainly on the strength of such a conclusion: see section 38(3) of the 1994 Act. Still less are they bound to convict on the basis of such matters.[15]So in this case, at the conclusion of all the evidence, the Justices had to weigh up the identification evidence given by PC Braisher and to assess its strengths and weaknesses. They were entitled, but not bound, to treat the respondent's silence at trial as some support for the prosecution case. It was up to them to decide whether or not the burden of proof upon the prosecution had been discharged so that they were sure of guilt. That question was entirely for them. In my view, they directed themselves properly on the applicable law. In those circumstances, it is not for this court to interfere with their judgment upon that question.[16]I would answer the question posed by saying that a reasonable bench of justices, properly directed upon the facts and law, could properly have acquitted the respondent. In other words, the decision to acquit was not perverse. For my part, I would dismiss the appeal.

LORD JUSTICE THOMAS: I agree.

[18]I would only add that we are greatly indebted to the way in which Mr Fields has dealt with this matter in such a short and succinct way. It greatly helps the expedition of business in this court and the saving of costs to the system.[19]MR HARRIS: My Lord, my client is legally aided, but he had to pay for his travel down here today to be at this appeal. I think the costs of that are £39.

LORD JUSTICE THOMAS: Where do we get that from?

[21]MR HARRIS: A defendant's costs order, or something like that.

LORD JUSTICE THOMAS: You ought to be sure. Could you tell us.

[23]MR HARRIS: I believe it is a defendant's costs order.

LORD JUSTICE THOMAS: You say you were not quite sure and now you assert it. You find us the relevant provision and refer it to us. We will carry on with the next case. You should come to this court prepared for those matters. (The case was adjourned for a short time)

LORD JUSTICE THOMAS: What are our statutory powers?

[26]MR HARRIS: My Lord, it is the Prosecution of Offences Act 1985, section 16 thereof deals with defence costs.

LORD JUSTICE THOMAS: Page which of Archbold?

[28]MR HARRIS: Page 892.

LORD JUSTICE THOMAS: Which year? We have got up-to-date copies.

[30]MR HARRIS: Page 892, section 6(6), subsection (5) of section 16 of the Prosecutions of Offences Act 1985.[31]MR JUSTICE MCCOMBE: The defendants costs order would carry the expenses to which you referred earlier, would it?[32]MR HARRIS: Yes, my Lord, that is in the sum of £39 that is sought.

LORD JUSTICE THOMAS: Thank you very much indeed.

[34]MR HARRIS: I am obliged.

LORD JUSTICE THOMAS: We will make that order.