Crown Prosecution Service v Shabbir & Ors [2009] EWHC 2754 (Admin)

[2009] EWHC 2754 (Admin)Case No CO/2625/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 21st October 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE GOLDRING
MRS JUSTICE RAFFERTY
Between
THE CROWN PROSECUTION SERVICEClaimantv
Between
SAJID SHABBIRDefendantMOHAMMED KHANDefendantWAHEED RATHORDefendantABDUL RAFFIQUEDefendant
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)
Beverly Cripps (instructed by CPS Bedfordshire) appeared for ClaimantPiers Marquis (instructed by Smith Brown & Sprawson Solicitors) appeared for First DefendantWarwick Aleeson (instructed by Healey Colbon) appeared for Second and Third DefendantsKevin Molloy (instructed by Lawtons) appeared for Fourth Defendant
J U D G M E N T

LORD JUSTICE GOLDRING:

[1]This case reflects little credit on most involved in it. I find it disappointing that three members of the bar have sought to argue points which, as will become apparent, seem to me to be wholly spurious.[2]The respondents were charged with two offences arising out of an incident in the early hours of the morning in Luton Town Centre. The first was that on 13th April 2008 they used threatening, abusive or insulting words or behaviour towards another person with the intent specified in section 4 of the Public Order Act 1986. The second was that on the same date someone called Shahir Azad was assaulted by beating, contrary to section 39 of the Criminal Justice Act 1988.[3]The trial took place on 8th December 2008 at Luton Magistrates' Court. The prosecution, the appellant in this appeal, called no live evidence. There was CCTV footage of the events. There was evidence of interviews with the respondents. The complainant did not attend to give evidence. His previous convictions were admitted. They included offences of violence. It was the case of the respondent, Abdul Raffique, that he acted in self defence. The respondents did not give evidence.[4]At paragraph 7 of their case the magistrates say this:
"In their summing-up the respondents' solicitors relied upon the fact the issue of consent had been raised and it was therefore for the appellants to show that the injured party had not consented to the assault. They also said that there was no evidence that the respondents had used threatening or abusive words or behaviour."
[5]In paragraph 6 (in the second paragraph which is numbered 6, for the 6 appears more than once in the course of the Case) the magistrates refer to the fact that the cases of R v Brown [2004] 1 AC 212 and R v Coney [1882] 8 QBD 534 were drawn to their attention in the context of the submissions in respect of assault.[6]They further say, in paragraph 7:
"With regard to the section 4 offence it was submitted by the respondents that there was no evidence on the CCTV that Abdul Raffique had used 'threatening, abusive orinsulting words or behaviour'."
[7]They set our their findings in paragraph 10:
"We found that for the charge of common assault there was an appalling level and degree of violence seen on the CCTV. It is a prolonged and vicious attack. We have been advised of the issue of consent in the charge of common assault and are unable to find the accused guilty within the definition and constraints of the law. We find that there is no evidence prior to the fight that supports the charge under section 4 of the Public Order Act 1986. Accordingly, we acquitted the accused."
[8]They pose four questions for this court:
"I. Where a defendant is charged contrary to section 39 [of the] Criminal Justice Act 1988 is lack of consent a necessary ingredient of the offence or is consent a defence to the offence? II. In proving a lack of consent or in disproving thedefence of consent must the prosecution rely on the evidence of the victim or can the lack of consent be inferred from other evidence, such as a CCTV recording? III.In a prosecution for an offence contrary to section 4 [of the] Public Order Act 1986 is the fact that violence was actually used a bar to a conviction for that offence? IV. In all the circumstances, were we wrong to acquit the defendants of the offences charged?"
[9]In short, having found that there was "an appalling level and degree of violence" and "a prolonged and vicious attack", the magistrates acquitted of the assault because the prosecution had failed to prove that the victim did not consent to it.[10]As to the public order offence, they appear to have acquitted because there was no evidence of threatening, abusive or insulting words or behaviour prior to the actual use of violence which could be seen on the CCTV. The issue of consent[11]Although very many cases have been drawn to our attention in the skeleton arguments submitted, this wholly spurious point can shortly be disposed of. This was, according to the magistrates, an attack, such as described in the case. Given such a finding, no question of consent could conceivably arise. An assertion by the defence solicitors or counsel that they wished to rely upon the issue of consent cannot change the state of the evidence. It cannot put into play something which does not arise on the evidence. It would be remarkable if, for example, in an allegation of domestic abuse, mere assertion by the defence advocate would be sufficient to require the wife to give evidence, and her failure to do so result in an acquittal.[12]Reference to the authorities of Brown and Coney was unhelpful and misleading. It is absolutely clear that those cases concern completely different issues from those raised in the present case. The fact that the allegation was of common assault, as opposed to assault occasioning actual bodily harm, a matter relied upon by the respondents in their skeleton arguments, is wholly irrelevant to a case on facts such as these. In short, this defence should never have been raised. It should never have succeeded. Section 4 of the Public Order Act 1986[13]It is clear that whether words or behaviour are threatening, abusive or insulting is a matter of fact. The question of the defendant's intention is equally a matter of fact. It is difficult, on the case submitted, to understand the magistrates' reasoning in respect of this allegation. The question posed (Question III) suggests that the magistrates regarded the fact that violence was actually used as a bar to a conviction of a section 4 offence — that section 4 could only bite before the violence was actually used. That, too, is wrong. It is the defendants' intention which is at issue in such an offence. It seems to me, having regard to the magistrates' findings of fact, it is difficult to see how any verdict other than guilty could arise. Conclusion[14]I return to the questions posed. I shall take Questions I and II together. While in particular, and very limited, circumstances it may be that consent is a defence to a charge of common assault, the lack of consent can be inferred from other evidence. Question III I would answer in the negative. As to Question IV, the magistrates were wrong to acquit the defendants of the offence under section 39 of the Criminal Justice Act 1988. They were wrong, too, in the light of their findings, to acquit of the offence under section 4 of the Public Order Act 1986.[15]In short, this appeal is allowed.[16]I want to make some final observations.[17]The submissions, particularly those in respect of the issue of consent, were, as I have described them, wholly spurious. They should never have been made. A court's time should not be wasted on dealing with bad points such as these. It is, moreover, difficult to understand why, in respect of these offences, clear legal advice was not given as to the appropriate applicable law.[18]I would finally observe that I would like to hear justification for the three members of the bar being present to deal with these two points in respect of which it is difficult to see any conflict can arise between the different respondents.

MRS JUSTICE RAFFERTY: I agree.

[20]MR MOLLOY: My Lord, I was instructed by those who represented Mr Raffique and I was only aware of other counsel instructed with the other respondents about a week and a half ago.

LORD JUSTICE GOLDRING: Why, a week and a half ago, was it not decided that only one member of the bar should represent all three? We live in very difficult times and it really is a waste of the public's money for three of you to be here — putting aside the merit of the argument in the first place — is it not?

[22]MR MOLLOY: I would agree with that to a point. The chronology is such that I suspect that most counsel had spent a lot of time drafting arguments, regardless of merit. The skeleton argument is well put forward so that the bulk of the work had been done by that stage. If it was pointed out at the very early stage that there were three barristers going to be here, then that would be a legitimate complaint.

LORD JUSTICE GOLDRING: How many solicitors were there in front of the magistrates?

[24]MR MOLLOY: There were two solicitors and a barrister. So there would have been three firms.

LORD JUSTICE GOLDRING: Was there a conflict between the defendants?

[26]MR MOLLOY: Not that I was aware of. My Lord, all I can say with regards to myself is that I was representing Mr Raffique, so it may legitimately have been the case that, in response to the Crown's application, they felt the need to get counsel involved.

LORD JUSTICE GOLDRING: Well, I would merely make this observation — and it should be drawn to the appropriate authorities — that it was inappropriate for there to have been three members of the bar representing the four respondents before this court. It was also questionably inappropriate for there to have been as many solicitors as there were representing the defendants before the magistrates. I would like those observations specifically drawn to the attention, as I say, of the appropriate authorities.

[28]MR MOLLOY: I am obliged, my Lord.

LORD JUSTICE GOLDRING: Nothing else?