L v Crown Prosecution Service [2007] EWHC 1843 (Admin)

Case No CO/4141/2007

[2007] EWHC 1843 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 16 July 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AULD

MR JUSTICE COLLINS

Between

LClaimant

Between

CROWN PROSECUTION SERVICEDefendant

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Ms Quincy Whitaker (instructed by Ben Hoare Bell) appeared for Claimant

Mr Robert O'Sullivan (instructed by the Crown Prosecution Service) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of the Justices for the County of Tyne and Wear sitting at Sunderland Youth Court on 15 February 2007. They convicted the appellant of an offence contrary to section 4 of the Vagrancy 1824. The offence in question was that he was found upon enclosed premises (a yard) for an unlawful purpose.

[2]One of the problems that we face in considering this matter is that the case stated is not entirely clear as to what crucial facts were found by the justices. They record that there were three youths who were before them faced with this charge. One had pleaded guilty at an earlier stage and the trial they conducted concerned the appellant and one other. They record in paragraph 6 of the case that:

"The prosecution opened the case on the basis that the unlawful purpose alleged was that they were hiding from the police having been involved in a burglary of the premises next door. They drew our attention to the activities of the co-accused N at number 13 Claremont Terrace and the fact that he climbed over the wall into the rear yard of number 14 and submitted in their opening address that in view of the fact that N had been in the rear yard of number 13 there was sufficient to convict."

[3]The facts found are set out in the next paragraph. They are as follows:

"a. At the relevant date number 13 Claremont Terrace comprised a number of residential flats. Between 17.00 on 15 June 2006 and 15.30 on 16 June entry was forced to flat 4 by smashing the glass to the kitchen window and an attempt was made to remove a hot water cylinder from inside the flat. Keys to the premises were found to be missing. b. Police Community Support Officer Langton was in the back lane of Claremont Terrace on Sunday 18 July [that should be June] when she heard glass smash. She saw a male who was agreed to be N in the rear yard of number 13 and watched him climb over to the rear yard of number 14. There was broken glass around and ladders had been placed against the wall however she was unable to say whether either the glass or the placing of the ladders was recent. c. Other officers attended the rear yard of number 14 Claremont Terrace and found the three defendants crouched near to the door from the rear of the property into the yard. When asked what he was doing there L said 'Nowt, I've done nowt'. d. 2 Keys on a yellow fob were found near to where the youths were detained which were later identified as being the ones taken from number 13 between 15 and 16 June. e. The applicant was arrested and interviewed in accordance with the Police and Criminal Evidence Act. Throughout the interview he exercised his right to silence. It was not claimed by the Crown that any special warning was administered."

[4]They go on to say:

"In addition to finding the above facts proved we accepted the following concessions from the prosecution witnesses: a. There was no direct evidence to link L and C [that is the other youth who was being tried with L] with number 13 Claremont Terrace. b. The only person seen in the yard of number 13 was N who had pleaded guilty on an earlier occasion."

It was on those facts that the conviction was based.

[5]Section 4 of the 1824 Act is headed "Persons committing certain offences shall be deemed rogues and vagabonds and may be imprisoned for three months with hard labour". Hard labour of course has gone, and some of the alleged offences within section 4 have either been repealed or have been made non-imprisonable. It was an Act passed in times after the Napoleonic Wars when there was a large number of ex-soldiers who had not been catered for by the authorities, who were wandering at large around the country and causing trouble.

[6]The relevant offences with which we are concerned are found in these words:

"... every person being found in or upon any dwelling house, warehouse, coach-house, stable or outhouse, or in any enclosed yard, garden or area for any unlawful purpose."

The charge here related to the enclosed yard at the rear of number 14, the burglary having been committed two days before at number 13 next-door.

[7]The first point that the justices were concerned about was whether an unlawful purpose meant that there had to be a criminal activity in mind. The prosecution were apparently putting the case on the basis that they were hiding from the police having been involved in a burglary. It is accepted by Mr O'Sullivan, on behalf of the respondent, that hiding from the police would not of itself be capable of being an unlawful purpose within the meaning of section 4 because unlawful purpose has to be a criminal purpose. There is authority which supports that approach. There is an old case Hayes v Stephenson [1860] 25 JP 39 in which it was decided that an individual who was found in a park for the purpose of fornication was not guilty of the offence under the Act because fornication was not a criminal offence. That approach has been confirmed more recently in Smith v the Chief Superintendent of Woking Police Station [1983] 76 Crim App R 234 at 237. It follows, subject to an argument raised by Mr O'Sullivan with which I will deal shortly, that hiding from the police as such is not within the section.

[8]The other point to be emphasised is that the offence is not being in an enclosed yard but is being found in an enclosed yard for an unlawful purpose. In Moran v Jones (1911) 75 JP 411, the question as to what was meant by "found" was considered by the Divisional Court. The question there raised was whether it meant that, at the time of the arrest, the individual had to have the necessary unlawful purpose. The court decided that that was not necessary, although no doubt in many cases that would be the relevant moment because that would be when the individual was found. But "found" can include "seen" or "discovered", and thus if an individual is seen in the relevant place with the necessary purpose, the fact that he is not arrested until later does not prevent the offence having been committed. So here N had been seen by the witness before the police attended, but L and his companion C were not seen or discovered and thus not found until the police attended.

[9]That that approach is the correct one is supported by a later case, R v Goodwin

[1944] 1 all ER 506

. That case concerned different provisions under the Prevention of Crimes Act 1871. The statute provided: If he is found in any place, whether public or private, under such circumstances as to satisfy the court before whom he is brought that he was about to commit or to aid in the commission of any offence ... " At page 508 at letter H, Humphreys J, giving the judgment of the court, said this:

"While it is not necessary that a person should be arrested at the place where it is alleged that he was found about to commit an offence, there is no doubt from the language of the section that it is necessary that he should be found - even if 'found' means no more than discovered or seen - in such circumstances as to satisfy the court that he was then and there about to commit an offence."

[10]If one substitutes for the words "in such circumstances as to satisfy the court that he was then and there about to commit an offence", the words "that he was there for an unlawful purpose", one has the correct approach, in my judgment, to the offence under section 4 of the 1824 Act. Accordingly, it is necessary, in order that L should properly be convicted, that at the time that he was found by the police, he had the necessary unlawful purpose.

[11]The case was put before the justices on the basis that the unlawful purpose was the burglary next door. Clearly, it could not have had anything to do with the burglary two days before because that was over and done. The allegation, no doubt based upon the presence of the ladders and the sound of breaking glass and seeing N climbing from number 13 into number 14, was that there had been a burglary, or at least an attempted burglary, taking place on that day. They had come back with the keys in order perhaps to finish what they had been unable to achieve a couple of days before. But one asks oneself: why was it that they were in the yard of number 14 at the time the police arrived? There had been breaking glass. There had been observations by the witness, and it is at least possible -- it may even be probable -- that they believed that they might have been disturbed; someone might have heard the breaking glass, and they were hiding in the backyard of number 14 in order to escape detection. If that was their purpose at the time they were apprehended, it would not be an unlawful purpose within the meaning of section 4.

[12]It was most important in the circumstances of this case that the justices were presented with a proper basis upon which they could convict and should have applied their minds to what was that proper basis. Mr O'Sullivan has submitted to us that they could have been satisfied that there was here a joint enterprise to commit a burglary next-door, and that at the time the police arrived, the appellant and the other youth, C, were in the yard still furthering that joint enterprise. It is very difficult, in my view, to see how that joint enterprise on the facts could have been furthered by L at the material time. What he was doing was entirely consistent with hiding in order to escape any detection. It is, I suppose, possible, although I would have thought no more than possible, that it might be said that they were still hiding there with a view to continuing the burglary if it was apparent that no one came to disturb them. That might possibly have been a basis for founding the case, but it was a desperately thin basis for this prosecution, and it certainly was not the way in which the matter appears to have been presented to the justices.

[13]Apart from that matter, there were other concerns raised in the case. There was a submission of no case to answer made. The justices rejected that. In rejecting it, the Chairman gave no reasons, but unfortunately observed that they were satisfied that there was a case to answer on the balance of probabilities. That of course was a wholly wrong basis for considering the matter. But it has been said that that was clearly an error and the justices have indicated that that was an error, and that they did have the proper considerations in mind. It may be that if that had stood on its own and I was satisfied on the other material that there was a proper decision by the justices, then one might possibly have overlooked that.

[14]In addition, it was argued that reasons should have been given by the justices for rejecting the submission. As a general proposition, there is no obligation upon justices to give reasons for rejecting a submission of no case to answer. But it may be that, in certain circumstances, it is desirable that some reasoning is given so as to enable a defendant to know precisely the basis upon which he has to face a charge: what is material for him to consider in deciding whether or not to give evidence and what should be covered by that evidence. He was unaware, he submits, whether he was facing a charge based on an intention to commit burglary in the future, or whether it was based upon a charge that he was escaping detection from the burglary that had taken place, and it was difficult for him in those circumstances to know how he should deal with the matter. The fact is he chose not to give evidence.

[15]Mr O'Sullivan makes this point: it would have been open to the advocate to ask the Bench what was the basis upon which they had decided there was no case to answer, and that was not done, and all that he knew was what the prosecution had stated in opening, and unfortunately it is not entirely clear what that covered.

[16]Further, it was submitted that the justices were wrong to draw any inference under section 35 of the Criminal Justice and Public Order Act 1994 on the basis that he had not given evidence. We have not in the end heard argument on that point because, as we indicated, we were in favour of the appellant on the main point and so I do not deal with it.

[17]That comes to the questions asked by the justices, which are not entirely helpful. The first question they ask is:

"a. Should we have restricted our deliberation as to whether we found an immediate unlawful purpose to commit an act in the premises in which the defendants were found?"

[18]It is not entirely clear what is intended to be covered by that question, but if they are asking whether the purpose at the time that L was found was what they had to consider, then the answer is that that indeed is what they would have had to consider. They talk about committing an act in the premises in which the defendants were found. They were found in a yard at number 14, and it clearly was not necessary that the offence should have related to number 14. The case indeed was the contrary, that the offence was related to the next-door premises, number 13, and that clearly would have been sufficient. For my part, I am afraid I do not find that at all a helpful question, nor is it easy to give a straight answer to it, but I hope I have indicated what my views are in relation to it.

[19]The next question is:

"b. Does any unlawful purpose found have to amount to criminal activity for which the defendants could have been prosecuted?"

The answer to that is "yes".

[20]The justices then ask:

"c. Were we entitled not to state to which premises the unlawful purpose related given that this was contained in the charge sheet and on the evidence presented to the court of the nature of the unlawful purpose we found?"

[21]Mr O'Sullivan has had the same difficulty as I confess I have had in understanding what that question is intended to mean. Apart from anything else, it is a little difficult to know what unlawful purpose the justices did find, since we have no finding as to any particular unlawful purpose. Certainly, one is left with the concern that they may well have found the unlawful purpose to have been no more than hiding from the police in order to escape detection, and that, if the attempted burglary or the burglary was over by then, would not and could not have constituted a proper basis for conviction. Accordingly, I decline to answer question c because, as I say, I do not find it comprehensible.

[22]The next question is:

"d. Although we did not adjudicate on the issue would an intention to hide to avoid arrest have been capable of amounting to an unlawful purpose?"

The answer to that is "no, it would not".

[23]They then ask:

"e. We accept the wording that was used was unfortunate when finding a case to answer. Did that invalidate the finding of a case to answer especially as no challenge was taken at the trial?"

[24]As I have already indicated, it was indeed unfortunate, but it does not necessarily invalidate if the court was satisfied that that was a slip of the tongue and the proper approach was adopted.

[25]The final material question is:

"f. Were we right in rejecting the submission of no case to answer in these circumstances?"

For my part, I find it difficult to see that, on the facts of this case, there was in truth any proper basis for convicting this appellant. Question g deals with the inference under section 35, and as I have already indicated I do not propose to answer that.

[26]In those circumstances, I, for my part, am satisfied that this conviction cannot stand. The only question is whether we quash it and remit for a retrial or whether we simply quash it. In my judgment, as perhaps is clear from the terms of the judgment I have just given, it would not be right to send this back for a retrial. The case against this appellant is flimsy in the extreme, and although it is possible, I suppose, to found a case on the basis that there was an ongoing purpose of burglary when they were found by the police, it is something which would, in my judgment, be wrong to find against the appellant on the proper criminal standard. Accordingly, I would not send this back for reconsideration.

[27]One final point, it is not in the case, but we were told by counsel that no notes were taken by the clerk to the justices or by the justices themselves; that is to say, there are no official notes which can be made available. We do not know whether this is a general practice or whether this is something which is peculiar to the Sunderland Justices (if indeed the information given to us was accurate). All that I would say is that, in my judgment, it is desirable that a note should be taken by someone -- whether the clerk or someone deputised by the clerk -- which is capable of being used as a formal note of the evidence if there is any later dispute as to what was or was not said in the course of evidence at the hearing. That is a footnote. For the reasons that I have given, I would quash this conviction and allow the appeal.

LORD JUSTICE AULD: Ms Whitaker, before I give my judgment, I wonder whether you will confirm something to me. In your skeleton argument you say, as my Lord has just mentioned, that it is not the practice of the clerk of the court to make any notes of evidence. Do you mean by that just the evidence or do you include in that any notes at all, that is to say, going to submissions, the advocates' opening and so forth?

[29]MS WHITAKER: My understanding is he takes no notes at all.

[30]MR O'SULLIVAN: My Lord, I do apologise for interrupting your train of thought, I know I have made the point, but on the respondent's behalf, I have not been able to speak to the clerk of the court. Whilst I accept my learned friend is acting on instructions, my Lord might hesitate before making any finding as to whether notes in fact were made by the court clerk.

[31]MR JUSTICE COLLINS: I do not think I indicated I was making any findings. I put it on the basis that "if" this was the position.

LORD JUSTICE AULD: Yes, thank you, Ms Whitaker. Thank you, Mr O'Sullivan.

[33]I agree with my Lord that the conviction by the justices of L should be quashed. I also agree with him that, in doing so, it is difficult to frame that conclusion by reference to an answer "yes" or "no" to all or any of the questions that they have posed for this court.

[34]As my Lord has said, the critical issue for the justices was whether the putative criminal unlawful purpose was that at the time when L was found in the enclosed yard the subject of the charge. It appears to be established, from the authorities to which my Lord has referred, that the words founding the charge and taken from section 4 of the Vagrancy Act 1824, "being found in an enclosed yard", mean what they say: unlawful purpose at the time of being discovered in any of the locations specified in section 4.

[35]A well-founded inference that there was such an unlawful purpose shortly before being found but no longer present at the time of finding will not do. Such an interpretation seems to me to be of a piece with the purpose of section 4 in the early 19th century and its use today. When one looks at the range of dubious activities at which section 4 is expressly aimed, of which this is just one, it is plain that its purpose was essentially to prevent further more serious criminally unlawful conduct.

[36]It is and should be a choice of last resort for a prosecutor when seeking to mark suspicious conduct and to prevent it developing into more serious mainstream criminal offences. And, because of the snapshot view that courts have to take as to criminal intent at the time the suspected person is found, should be resorted to with caution.

[37]As my Lord has mentioned, we have been told in the course of argument that it is the practice of the clerk of the court in which L was tried not to make any notes of the proceedings before the court. We do not know whether this is commonplace for summary trials before magistrates throughout the country. We hope not. It is clearly important that adequate notes are made, even in comparatively minor cases such as this, going, albeit briefly, to the basis upon which the prosecution case is opened, the salient features of the evidence on both sides, and to any submissions as to law of the sort that occurred here or otherwise.

[38]If the clerk in this instance has a general practice not to make notes of the proceedings before the justices whom he is clerking, it is particularly unfortunate in this case. As my Lord has said, there appears from their case stated to have been much uncertainty in their minds as to how the prosecution case was put and the factual basis for it, and how the points raised at the close of the prosecution were responded to by the prosecution, leading to the decision made.

[39]Accordingly, I agree with the order proposed by my Lord for the reasons he has given. The conviction is therefore quashed.

[40]MS WHITAKER: I am most grateful, my Lord. May I have a community legal services funding assessment?

LORD JUSTICE AULD: That would normally follow.

[42]MS WHITAKER: Yes, thank you.

MR JUSTICE COLLINS: Are you not applying for costs out of central funds?

[44]MS WHITAKER: My Lord, yes.

LORD JUSTICE AULD: You have instructions to do that?

[46]MS WHITAKER: No, I do not.

[47]MR JUSTICE COLLINS: You ought to have, ought you not, otherwise the legal aid fund pays? It is a different vote you see. It is very important that the correct vote pays.

[48]MS WHITAKER: Yes, sorry, my hesitation is whether there is a power to award costs.

MR JUSTICE COLLINS: Yes, under the Prosecution of Offences Act.

[50]MS WHITAKER: Out of central funds as opposed to the prosecution --

MR JUSTICE COLLINS: I am not suggesting against the prosecution, no.

[52]MS WHITAKER: My Lord, I am grateful. I would ask for central funds so as to protect the finite resources of the legal aid.

LORD JUSTICE AULD: You are not asking for both, are you?

[54]MR JUSTICE COLLINS: Actually, you are not legally aided under the fund, you are legally aided as a result of an order made by me.

[55]MS WHITAKER: Perhaps I could start again and apply for my costs out of central funds.

LORD JUSTICE AULD: That is the application you make?

[57]MS WHITAKER: It is my Lords, yes.