McMahon v Director of Public Prosecutions [2007] EWHC 1741 (Admin)

Case No CO/2783/2007[2007] EWHC 1741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 29 June 2007
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
Between
MCMAHONClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR BARNES (instructed by Hemsleys of Chester) appeared for Claimant for The Defendant was not represented and did not attend
J U D G M E N T

LORD JUSTICE HUGHES:

[1]This appellant was convicted at Chester Magistrates' Court on an offence of criminal damage. The allegation against him was that he punctured the tyres on a car of a man he knew and against whom presumably he had some grievance. The offence was alleged to have been committed at night when the car was parked outside the home of its owner's girlfriend whom he was visiting at the time.[2]In front of the magistrates both the car owner and his girlfriend gave evidence that they heard a noise in the street, looked out of the bedroom window and saw the appellant, whom they knew, crouched down by one of the wheels. On the other side, the appellant gave evidence that he was indeed in the street and, for that matter, had recognised the car, but that he had not crouched down by it, nor had he done any damage to the tyres. The appellant called Mr Davis who said that he was with him at the time, and said the same.[3]In announcing the verdict of guilty, the chairman of the justices said this of the defendant and his witness Mr Davis:
"Although the two witnesses gave credible evidence (good clear evidence with few inconsistencies) they both accepted they were in Collingham Grove at that time and admitted discussing the car and were by the car."
In their case stated, the justices now say this:
"Unfortunately, in our use of the phrase 'credible evidence', we have inadvertently encouraged the appellant to believe that we did not correctly direct ourselves as to the burden and standard of proof, and this infelicitous wording has given rise to this application to state a case. To clarify the assessment we recorded of the defence evidence, we would state that the defendant and his witness gave their evidence in a plausible manner, placing themselves by the car at the relevant time. We did not accept that the defendant and his witness told the truth when they denied that George McMahon had crouched down by the side of the car as stated by the prosecution witnesses."
[4]Before the justices could properly convict this appellant, they had to be sure of his guilt. Nothing less would do. It is not possible now to say whether the justices did apply the wrong test, but there is no doubt at all that their words of adjudication gave the impression to any neutral, informed observer that they had. If the evidence of the appellant and Mr Davis was credible, the prosecution case could not be proved to the necessary standard. Nor do we think that this is simply a matter of form of words. This was a case in which the justices would have to reject, either as deliberately false or as mistaken if there was any room for mistake, the evidence of the appellant and his witness before they could be sure of guilt. Despite what they say in their case stated now, it is not possible to say whether that was their state of mind at the time. At the very least, justice has not been seen to be done.[5]The justices' case has at least the appearance of changing the justices' reasons when challenged on appeal. That is exactly what this court held justices are not permitted to do in Evans v Director of Public Prosecutions [2001] EWCH Admin 369, a case in which the facts were almost indistinguishable from the present one.[6]The prosecution in this case, having considered the notice of appeal and the case stated, have indicated that they do not feel able to oppose this appeal. They consent to an order quashing the conviction. We take the view that that is the correct course. No re-trial is sought in this case by the Crown.[7]Accordingly, the order we make is to quash the conviction. Is there any consequential order, Mr Barnes?[8]MR BARNES: There is not at this court. The defendants have the benefit of public funds. There is no application for costs. ---