Corwn Prosecution Service v S [2007] EWHC 3313 (Admin)

Case No CO/6240/2007

[2007] EWHC 3313 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 11 December 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE BURTON

Between

CROWN PROSECUTION SERVICEClaimant

Between

SDefendant

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MISS J DAGNALL (instructed by CPS) appeared for Claimant

MR P DOCKERY (instructed by Cobains) appeared for Defendant

J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This is an appeal by way of case stated from the Blackpool Youth Court. On 1 May 2007 that court heard an information laid against the respondent (to whom I shall refer as S) alleging that he had assaulted Nicola Adcock on 19 May 2006, thereby occasioning her actual bodily harm.

[2]The case stated is very helpful on the evidential background to the case. The evidence established that, on the night of 19 May 2006, Nicola Adcock was with her friend, a boy called Ainsley, at a bus stop in Topping Street, Blackpool. A point came where they were approached by another girl, whose name was Phoebe, who was in the company of S. Phoebe was abusive towards Nicola and assaulted her. In the event, Phoebe was later to admit that assault and she received an out-of-court reprimand for it.

[3]S was present at the scene at all material times. The case against him was put, at least in part, and I think mainly, on the basis of joint enterprise, it being alleged that he had used words of encouragement which fuelled Phoebe's assault. He had also prevented Ainsley from intervening to protect Nicola. The prosecution also alleged that S himself had acted violently towards Nicola in that he had kicked her, but he always denied that.

[4]The incident was observed by an independent adult witness of mature years, Mrs Joan Jones, who also gave evidence for the prosecution. At the end of the incident, Phoebe and S ran away. He later returned and was pointed out to the police. He ran away again, but was apprehended a short distance away.

[5]The case turned very much on the evidence of the three prosecution witnesses: Nicola, Ainsley, and Mrs Jones. It is not necessary to set out their evidence as fully as it is set out in the case stated. It is sufficient to refer to the following aspects of it.

[6]Nicola's evidence included a description of S saying "go on" to Phoebe, and "hit her". She also said that she felt a kicking in her back and that "the lad was kicking her in the back". She added that he was persuading Phoebe to do more. She described the injuries. In cross-examination, she said that S had been egging Phoebe on, saying "hit her, hit her, she's getting cocky with you", before Phoebe struck the first blow. She described a big bruise on her back as a result of the kick, although she accepted that she had not referred to the bruising in her witness statement. She said that she was on tablets and that affected her memory, but such alcohol as she had drunk had not affected it. She had previous convictions for assault and had been in receipt of psychiatric treatment. Her last conviction for assault was in October 2005, and she said that in 2006 she had changed her way of life for the better.

[7]Ainsley's evidence included a description of S shouting and encouraging Phoebe. He attributed to S the words "go on Phoebe, hit her". He said that he was trying to stop the fight, but that S had prevented him from doing so, and that S had added "would you like to start something"? He described Nicola as having been on the floor at one stage, and he also said that, at one point as he had turned around, S had kicked Nicola. In cross-examination he added to that part of his evidence, saying that Nicola was getting up from the floor when S had kicked her in the back near her shoulder blades.

[8]Mrs Jones had been standing at the bus stop and plainly had a good view of what happened. She gave evidence, which included a reference to S "behaving like a football hooligan, telling the thinner girl to hit her". She added that S had landed out with his foot, but she could not say whether it connected or not. She also saw S push Ainsley away, and she further referred to S then aiming a foot towards the girl on the floor "aimed towards her body", although again she could not say whether that connected, nor could she be precise as to which part of the body it was aimed towards.

[9]There was formal evidence of arrest by police. Nothing now turns on that. In the course of his interview at the police station, S denied kicking or kicking out at Nicola and denied encouraging Phoebe to hit Nicola. However, he admitted that, when the two girls started to fight, he had said "Phoebe, don't let her get the better of you".

[10]That then was the prosecution evidence. At the end of the prosecution case, the advocate then appearing for S made a submission of no case to answer. In due course, the court acceded to that submission and dismissed the case. It is against that decision that the Crown Prosecution Service now appeals to this court.

[11]Whether a submission of no case to answer is made in the Crown Court or in the Magistrates' Court, it falls to be dealt with by reference to the well-known test in Galbraith 73 Crim App R 124, where the proper approach was described as follows by Lord Lane CJ:

"(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

[12]One instinctively sympathises with magistrates who are both judges of the law and the tribunal of fact. However, it remains important that they deal with a submission of no case to answer as the judges of the law, applying the Galbraith test, to the circumstances in which they find themselves.

[13]In coming to their conclusion that there was no case to answer, the magistrates considered that the evidence was "weak and inconsistent". So far as Nicola was concerned, they considered that her memory was not good because of her medication. They took into account and accorded some weight to the fact that she had not mentioned the bruise to the police, and nor had there been any photographic evidence of it. They also attached significance to the fact that Nicola had not attributed to Phoebe the words "hit her, hit her", in her witness statement. They added:

"We felt that Nicola was minimising her role in how the incident began and was not credible."

They also referred to her previous conviction for assault and other matters.

[14]So far as Ainsley is concerned, they referred to a discrepancy between his evidence and Nicola's as to events of no relevance to the case earlier in the evening. They referred to the fact that he had said that the kick was in the area of Nicola's shoulder blade, whereas she had said that it was in the kidney area, and they purported to detect a difference between those two witnesses as to the precise chronology of events.

[15]As to Mrs Jones, they said this:

"Mrs Jones witnessed the respondent aim a kick at Nicola, but she was not able to say if this kick connected. Mrs Jones could not hear what was being said by the two females involved."

From there they proceeded immediately to state their decision that they were of the opinion that there was no case to answer.

[16]On behalf of the Crown Prosecution Service, Miss Dagnall essentially makes a simple submission to the effect that it was perverse to conclude that this was a prosecution case which could not proceed beyond the halfway stage because of weakness and inconsistency. In my judgment, there is great force in that simple submission.

[17]It is hardly surprising that there was an element of inconsistency between the witnesses. It would be an unusual case of this sort if there were none. It is also unsurprising if some things were seen or heard by one witness but not by another. However, what is immediately striking about this case is the very substantial degree of material consistency between Nicola, Ainsley and, importantly, Mrs Jones. They each gave evidence of S encouraging Phoebe to assault Nicola. I refer again to the passage in Mrs Jones' evidence, where she said that S was "behaving like a football hooligan, telling the thinner girl to hit her".

[18]The magistrates say nothing by way of criticism of Mrs Jones or her evidence, but in the brief passage where they explained its significance to their conclusion, they made no reference whatsoever to the fact that Mrs Jones had given clear evidence of verbal encouragement by S to Phoebe to hit Nicola. They do not reject that evidence. It is difficult to conceive of a basis upon which they could have done so.

[19]Equally, in their reference to Mrs Jones' evidence in support of their reasons, they say nothing about her evidence that S had pushed Ainsley away, that evidence being entirely consistent with Ainsley's evidence to the effect that S had stopped Ainsley from intervening to bring the violence to an end.

[20]These are matters of great potential importance. If they were to be rejected, then one would expect some reasoning to support that rejection. However, there is none. The magistrates refer to inconsistency, particularly as between Nicola and Ainsley, in relation to what it seems to me were relatively minor matters, and they are critical of Nicola and her credibility. But when one looks at their reasoning for stopping this case, those points add up to a wholly insufficient basis to justify stopping the case.

[21]Mr Dockery realistically accepts that the treatment of the evidence is hardly satisfactory, but he submits that there is a finding of a lack of credibility on Nicola's behalf, and he invites us to keep in mind that the magistrates had the advantage, which we lack, of hearing and seeing all three of the witnesses. I am deeply mindful of that. Nevertheless, if and to the extent that the sole issue was whether there was no case to answer upon an application of the Galbraith test, I am in no doubt that, unfortunately in this case, the magistrates came to a perverse conclusion. It may be that they did so by concentrating on the kick to the exclusion of the encouragement and the intervention to stop Ainsley from assisting Nicola. I know not. However, it is apparent that, at all times, the prosecution were putting their case primarily on the basis of joint enterprise. There is evidence from all three witnesses supporting joint enterprise and certainly amounting to a case which called for an answer. In those circumstances, I conclude that the magistrates may have taken their eye off the ball when coming to the conclusion that there was simply no case to answer.

[22]It is plain from the case stated that that and that alone was the issue considered by them. They did not approach the matter on the basis that there was a case to answer, but having heard all the prosecution case, they as fact-finders were unimpressed by it and they stopped the case at the prior stage of reasoning. In my judgment, they were wrong to do so and reached a perverse conclusion in doing so.

[23]The question posed for the opinion of this court by the case stated is:

"Was our decision to find that there was no case to answer one that a reasonable Bench properly advised could have reached?"

[24]In my judgment, the answer to that is "no". I would therefore allow the appeal and remit the matter to the Blackpool Youth Court for trial by a differently constituted Bench.

[25]MR JUSTICE BURTON: I agree. I would only add this. The kick to which my Lord referred does appear to have misled the justices in that the third of their reasons relating to Mrs Jones was dedicated to whether the kick did or did not connect. This issue might have been relevant if the assault charged was said to be by the defendant himself, leading to a charge against him as principal offender; but plainly if, as was here the case, he was being charged by reference to joint enterprise, then, whether the kick connected or not, it would still be relevant, and therefore part of the case for him to answer.

LORD JUSTICE MAURICE KAY: Thank you, very much.

[27]MISS DAGNALL: I am most obliged. Those who instruct me have prepared a schedule of costs.

LORD JUSTICE MAURICE KAY: Who are you expecting to pay?

[29]MISS DAGNALL: Central funds.

LORD JUSTICE MAURICE KAY: Yes. We make an order from central funds. We have seen your list. My Lord and I are ignorant as to the scheme which is referred to. What is the VHCC scheme?

[31]MISS DAGNALL: Very high costs cases.

LORD JUSTICE MAURICE KAY: Very high costs cases?

[33]MISS DAGNALL: Apparently that is how my fee is to be calculated for this hearing.

LORD JUSTICE MAURICE KAY: Because it is in the High Court?

[35]MISS DAGNALL: Yes.

LORD JUSTICE MAURICE KAY: Well, it is a grandiose title, but the fee does not seem to me to be excessive, so you can have grandiosity, but a modest fee.

[37]MISS DAGNALL: Thank you.