L v Director of Public Prosecutions [2009] EWHC 238 (Admin)

Case No CO/8437/2008

[2009] EWHC 238 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 14 January 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE WYN WILLIAMS

Between

LAppellant

Between

DIRECTOR OF PUBLIC PROSECUTIONSRespondent

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Mr Bloomfield (instructed by Ben Hoare Bell Solicitors, Sunderland SR1 1QH) appeared for Claimant

Mr Spragg (instructed by the CPS) appeared for Defendant

J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This is an appeal by case stated from a decision of the Sunderland Youth Court made on 27 March 2008. On that occasion the Justices found the appellant guilty of an offence of handling stolen goods.

[2]The case stated discloses that the Justices found the following facts:

"a. Some time prior to 2.30am on Saturday 3rd February 2008 entry was forced to a garden shed at 89 H Road Sunderland and a pedal cycle belonging to AM's 11-year old son JM was taken. b. At 11am AM, while driving his taxi, saw a male, aged about 17 sitting on a mountain bike outside a second-hand shop in H Road and was almost certain this was the bike taken the previous night. c. AM followed the male in his taxi and saw him on a number of further occasions. He reported his sightings to the police. d. At 11.42 on 4th February PC Dent attended the Burdon Road area of Sunderland where he saw the Appellant pushing a mountain bike which fitted the description provided by AM. He cautioned and arrested the appellant who said, "

I've had the bike for ages." Two other males with the appellant were also arrested. e. JM attended Gilbridge Police Station at 16.07 on 4th February and was shown a mountain bike which he identified as his own by various distinguishing marks. f. The Appellant was interviewed at 15.08 on 4th February and 10.29 on 5th February. During interview he exercised his right to silence and was charged at 16.52 on 5th February when he made no reply. g. We found beyond reasonable doubt that the bicycle recovered from the Appellant was the same one as was taken from AM's shed and that the Appellant knew or believed it was stolen. h. The Appellant had significant previous convictions of which we were informed."

[3]The trial in the Youth Court took the form of a trial on paper in the sense that none of the prosecution witnesses was required to attend by the defendant's legal representative. All the witness statements were read effectively as agreed evidence. They included the evidence of AM and his reference to being "almost certain" that the bicycle that he saw in the street was the same one that had been stolen earlier that day, the statement of JM, which provided positive identification evidence, in the sense of the bicycle being shown to him being his bicycle, it bearing significant distinguishing features, and the statements of the police officers.

[4]One of those officers, PC Dench, was responsible for the arrest of the appellant in the street and the seizure of the bicycle from him at that time. The officer's statement says:

"I subsequently seized the bike which I can produce as my exhibit GGD/01."

[5]It is important to keep in mind what the unchallenged evidence established beyond all doubt:(1) A blue silver Reebok mountain bike was stolen from the M's shed in the early hours of 3 February.

(2) AM saw a person with a bicycle of that description in a number of places around 11 o'clock that morning and called the police. He said that he was "almost certain" that it was the same bicycle.

(3) At about 11.45 the police found the appellant pushing the bicycle, which was then seized from him, at which time he said, "I've had the bike for ages".

(4) PC Dench effected the seizure.

(5) At 16.07 on 4 February, JM positively identified the bicycle shown to him in the police station as the stolen bicycle.

[6]A submission of no case to answer was made on behalf of the appellant but it was rejected.

[7]The case for the appellant in the Youth Court, and now, is that there was not even a prima facie case established that the bicycle shown to JM was the bicycle seized from the appellant in the street. Although the witness statement of PC Dench ascribed an exhibit number to the seized bicycle, there is no formal evidence of continuity thereafter. The evidence does not specifically disclose which officer showed the identified bicycle to JM, or that it bore an exhibit label. This, submits Mr Bloomfield, who did not appear in the court below, is fatal to the prosecution case.

[8]The case for the prosecution is that at the close of the evidence of the prosecution case in the Youth Court it was open to the magistrates to infer that the bicycle shown to JM was the same bicycle that had been seized from the appellant in the street.

[9]The purpose of a criminal trial is to acquit the innocent and convict the guilty. It was ever thus, but it is now brought home by the Criminal Procedure Rules 2003 which state the overriding objective in rule 1.1:

"(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes- (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly."

It is then provided in rule 1.2 that each party in the conduct of the case must:

"(a) prepare and conduct the case in accordance with the overriding objective."

[10]This emphasis on dealing with both sides fairly, and the requirement that each side in the conduct of its case should act in accordance with the overriding objective, simply confirms that a criminal trial is not a one-sided obstacle race. Of course the prosecution must prove its case if it is to secure a conviction, but there is more than one way in which that may be done.

[11]What happened in the present case is that the appellant's advocate below adopted a tactical approach throughout which relied entirely on establishing a doubt that the bicycle identified by JM in the police station was not the same bicycle as had been seized by the appellant in the street. The case stated refers to the submissions made both at the close of the prosecution case and later in the trial, albeit that the appellant had not given evidence. It is apparent that that was the sole issue in the case.

[12]It raised the obvious question. If it was not the same bicycle how did it come about that the police were able to show JM his bicycle, which they undoubtedly did and which had undoubtedly been stolen, rather than the seized bicycle. The logical possibilities seem to me to be limited to underhand skulduggery on the part of the police, and/or the Ms, or error built on a coincidence of identical bicycles being in the police station at the same time, including one that had been stolen, but not recovered, in the way that the evidence suggested.

[13]If this line of defence was to be pursued, it seems to me that it was incumbent upon the appellant's advocate at trial to require the attendance of the witnesses so that the line of defence could be investigated. In the event, he did not do so, but consented to all the evidence being read no doubt because he thought there might be some tactical benefit accruing therefrom.

[14]In my judgment, in the light of the unchallenged evidence, it was open to the magistrates to infer that the bicycle seized from the appellant was the one later identified by JM. The unchallenged evidence gave rise to only fanciful alternative explanations, which could be safely discounted as there was no evidential foundation for them.

[15]I acknowledge that the appellant had uttered a spontaneous exculpatory remark at the scene, but that did not require the magistrates to accept the possibility of a fanciful scenario unsupported by evidence, and based entirely upon an invitation to speculate.

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

"Whether on the evidence before us we were entitled to find that there was a case to answer?"

In my judgment, the answer to that question is plainly in the affirmative. The case stated goes on to pose two further questions which relate to the subsequent stages of the trial, but Mr Bloomfield responsibly accepts that it is the first question that is determinative of this appeal, one way or the other. If there was a case to answer, then the subsequent conviction is not impugnable. If there had not been a case to answer, then the appeal would have had to have been allowed.

[17]Accordingly, no purpose will be served by venturing into the fields referred to in the subsequent questions. It is not necessary to engage with debates foreshadowed by those questions and in the skeleton arguments, which related to questions of adverse inference from no comment interviews, or from a failure to give evidence. To my mind it was plainly open to the magistrates to find sufficient evidence without the need to resort to adverse inference from the 'no comment' interviews, and also without regard to the previous convictions, which had been opened, but perhaps not formally proved.

[18]In these circumstances, the answer to the first question being as I have indicated, I would dismiss this appeal.

MR JUSTICE WYN WILLIAMS: I agree.

[20]MR BLOOMFIELD: Can I raise two matters, please? First of all, could I ask for an order that the appellant--

LORD JUSTICE MAURICE KAY: Be anonymised? How old is he now?

[22]MR BLOOMFIELD: I think as of 29 September he was 18. He was 17 at the time of the commission of the offence. In the normal course of events it is not a matter that would be within the public domain.

LORD JUSTICE MAURICE KAY: Is there not some provision about that? Does he not lose his right on his 18th birthday?

[24]MR BLOOMFIELD: I do not think he does. I have looked at Archbold and think it is dealt with.

LORD JUSTICE MAURICE KAY: It goes to the date of offence, does it?

[26]MR BLOOMFIELD: My understanding is that it does, my Lord. I think your Lordships have to announce it continues otherwise it does not, if that makes sense. It is in the 2009 Archbold on page 362. As I understand it, it is section 49 of the 1933 Children and Young Persons Act.

MR JUSTICE WYN WILLIAMS: Could you give me the paragraph number?

[28]MR BLOOMFIELD: It is Chapter 4-29. I think it is the first ten lines ending with the words "appeal from any such proceedings". It goes on in the following three or four lines to indicate that your Lordship has to announce it. As I understand it, they apply.

LORD JUSTICE MAURICE KAY: Section 39 of the 1933 Act has gone.

[30]MR BLOOMFIELD: That applies not just to defendants but to witnesses, and the like. Section 49 is that which attaches to the accused in a trial of a Youth Court. It indicates that by variety of provisions it:

"automatically imposes restrictions similar to those contained in section 39(1) ... in relation to proceedings in youth courts and to proceedings under Schedule 7 to the Powers of Criminal Courts (Sentencing) Act 2000,.. or on appeal from any such proceedings"

. Of course we are on appeal from any such proceedings. In my submission the prohibition automatically complies.

LORD JUSTICE MAURICE KAY: You are content that that is right, Mr Spragg?

[32]MR SPRAGG: I have only just been looking at the point. I take no issue in relation to that.

LORD JUSTICE MAURICE KAY: We will make the order, and if anybody thinks we were wrong to do so they will no doubt come and tell us.

[34]MR BLOOMFIELD: The second application is for an order of detailed assessment of the appellant's costs?