M v Director of Public Prosecutions [2009] EWHC 752 (Admin)

Case No CO/10349/2008[2009] EWHC 752 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 26 February 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE SWEENEY
Between
MClaimantv
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 Patrick Fields (instructed by Crown Prosecution Service) appeared for ClaimantMr Phillip Rule (instructed by Blaser Mills) appeared for Defendant
J U D G M E N T

LORD JUSTICE LEVESON:

[1]On 8 April 2008, following a trial conducted in the High Wycombe Youth Court, this appellant was convicted of causing criminal damage to a motor vehicle contrary to Sections 1 (1) and (4) of the Criminal Damage Act 1971. He now appeals against this conviction by way of case stated.[2]Before embarking upon an analysis of the facts, it is worth saying something of the procedure which has been adopted. Appeal by way of case stated is a request to the court to determine issues of law raised in a case stated by the magistrates after both sides have had an opportunity to comment upon it. Such an appeal is freestanding and depends only upon the facts found by the court.[3]In this case, on 14 October 2008, the magistrates signed a stated case. As part of the appeal, the appellant has sought to rely upon three further statements of evidence consisting of statements from the appellant's mother, solicitor and a trainee solicitor of the appellant's solicitors' firm.[4]The respondent, in its skeleton argument, expressed concern about the fact that the appellant had had the opportunity to comment upon any perceived inadequacy in the draft prepared by the justices and was troubled lest the statements revealed differences. In our judgment the approach of the appellant represents a misunderstanding of the process. In Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin), the Divisional Court, per Stanley Burnton J (as he then was), stated:
"14 There is a surprisingly common misconception that once an appeal by way of case stated is before the court, the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case. 15 On appeal by way of case stated, the court is confined to the facts of the actual case. It is therefore important that the parties ensure that the case includes all those matters that should be before the court when deciding the issues raised on the appeal. If a party to an appeal considers that the case produced by the lower court omits relevant matters, he should seek to have the case supplemented either by agreement with the other party at the lower court or by application to this court under Section 28A (2) of the Supreme Court Act 1981 for an order for the amendment of the case stated."
[5]That issue was further considered by the Divisional Court in DSG Retail Ltd v Stockton on Tees Borough Council [2006] EWHC 3138 (Admin), in which Waller LJ said:
"61 I consider it impermissible on an appeal by way of case stated for reference to be made to such further material outside the record provided by the case stated. The parties to the proceedings below are given an opportunity to make representations on the draft of the case stated. That is now contained in the Criminal Procedure Rules, Part 64.2 (2). This is the opportunity afforded to the parties to ensure that all relevant facts are included."
That is not, of course, to say that agreed errors cannot be corrected. Thus in R (on application of Russell) v Director of Public Prosecutions [2006] EWHC 3054, Mr Justice Goldring (as he then was) admitted agreed corrections of small fact to the case.[6]It is quite clear from the material placed before the court that there are real issues as between those who signed witness statements on behalf of the appellant and the court. In the circumstances we take the very clear view that this court is limited to the four corners of the case and we decline to go beyond them.[7]With that preliminary point, we turn to the facts. The allegation against this appellant was that on 27 May 2007 at Flackwell Heath in the County of Buckinghamshire, without lawful excuse, he destroyed a Vauxhall Astra belonging to Lynne Julie Russell. There is no doubt that damage was done to that lady's motor car.[8]The key evidence at the hearing was provided by a witness, Paul Collins. The case stated repeats his evidence in this way: "At about 8 pm on 27 May 2008 he was standing on the balcony having a cigarette. He saw four males at the bottom of the steps. Two walked over to the garages and came back empty handed. One of the males jumped on the bonnet of the car and kicked in the windscreen. Another male went around the side of the car and either kicked or punched in the side window. The body movements observed were as if he was kicking or punching. He could hear smashing and then thumping. Another male went around the back of the vehicle and kicked in the window. The male who went round the side was the smaller of the two and was recognised by Mr Collins who described his view as 'ever so clear', it was daylight and he was 18-20 yards away. He stated he had a clear and unobstructed view. There was a brick wall but he could see the car and the passenger side and the bonnet. There were 2 spaces and the car was not parked in the one nearest the wall. The wall was over 6 ft but Paul Collins was standing about 15 ft up and could see over the top of the wall from where he was standing. Nothing was obstructing his view." [Mr Collins] said he called for his wife to telephone the police who attended.[9]At a subsequent identification parade Mr Collins identified the appellant, being the smaller of the two, who, he said, was at the passenger side of the vehicle. He said that he had known the appellant for some 6 or 7 years. He was 100 per cent sure of his identification. There were other witnesses to the incident but none other gave evidence that added to that provided by Mr Collins in relation to the identification of the appellant.[10]It is important to note the submission made by the appellant's solicitor at the close of the prosecution case. According to the stated case, it was argued that there had been four males and one female present. It was not possible to be clear as to the role of the males. It was not possible to see behind the wall as to what was going on on the driver's side. Mr Collins had said that the male to the rear of the car could not be seen except for his head and shoulders. The appellant was 5-foot tall and was said to be on the passenger side of the car. From the body movements it looked like he was punching or hitting the car. It was entirely possible that Mr Collins was mistaken.[11]The Crown submitted that Mr Collins' evidence was credible and reliable. He said he had a clear view of the passenger side, front and part of the back of the car.[12]The magistrates then determined that there was a case to answer, and heard the appellant as well as his co-defendant (who was acquitted) give evidence. The appellant said he had never touched the car. He had not known it was smashed until he walked around the back.[13]The case goes on at paragraph 6:
"In view of the submissions from the defence in relation to the obstruction caused by the wall we felt it was appropriate to conduct a site visit. This course of action was supported by the appellant ..... We do not recollect any discussion or agreement about which car would be used to be parked in the relevant position at the 'view'. We had not agreed to a reconstruction of events; our intention was to have a view of the scene."
[14]The issue which arises on this appeal concerns what happened at the view. We quote from the case as to the circumstances:
"We arrived first at the site and therefore before the defence advocate. On arrival at the site, we parked our car in the parking space which it was accepted had been the space where the vehicle, the subject of the charge, had been parked. The magistrate who was driving parked in that space in order to secure it as the car park was busy at the time. Had we been advised that another car needed to be parked there for the purposes of a reconstruction we would have removed our car. No objection was raised by the appellant on his arrival regarding our car being in that space. We viewed the area from the position the witness Paul Collins had indicated he had been standing in. As we did so the advocate for the appellant placed his client next to the car on the passenger side. On returning from the balcony the defence advocate began to speak to one of us i.e. a member of the Bench. The other 2 members of the Bench were not aware of this. We became aware that at some point the legal adviser suggested to the defence advocate that it would be more appropriate to make any representations back at the court when all parties were present. This opportunity was taken up by the defence advocate as part of his closing speech. He made representations regarding the difference in sizes of the vehicles and that the vehicle the subject of the charge was parked further forward in the parking space. It is not our recollection that the defence advocate complained about the procedure we had adopted at the view or that anything improper had taken place rendering a breach of either natural justice or the defendant's Article 6 rights."
[15]The case goes on to record that the justices concluded that the appellant was present at the scene and part of the group that caused the damage to the car at the side passenger window. Their reasons were as follows:
"(a) We found Lynne Russell's car was not damaged when she left it but was damaged after the incident which occurred between 6 pm and 8 pm; (b) We found that Paul Collins' view was good from the balcony; (c) Paul Collins had known [the appellant] by sight for over 6 years; (d) The light was good and he could clearly see the passenger side of the vehicle; (e) While [the appellant's] head and shoulders would have been clearly visible from his position on the balcony, we accept that his hands and feet could not have been seen with the same clarity. However Paul Collins' description of the body movements were highly suggestive of kicking and punching and with the noise of the glass breaking conclusive; (f) We found Paul Collins' evidence credible."
[16]The argument advanced by the appellant has concerned the way in which the visit to the site was conducted. The questions posed for the High Court are:(1) Was it wrong in principle, having regard to Parry v Boyle (1986) 83 Cr.App.R 310, for a member of the court to take part in a reconstruction, thereby directly involving the court and fact-finding tribunal in the contested reconstruction and inhibiting the ability of the defence advocate, who complained at the time, to make comment or criticism upon the nature and manner of the reconstruction conducted?(2) By the justices engaging in the process of the reconstruction was natural justice denied to the defendant and/or was Article 6 of the European Convention on Human Rights violated because the tribunal itself had entered into the realm of giving this real evidence rather than receiving it and hearing submissions as to its evidential value, and did the process adopted give an appearance of bias?[17]We deal with these questions separately. To some extent, the first question proceeds upon a misconception because it is drafted in such a way as to assume the fact of a reconstruction. We repeat that the case stated by the magistrates is in terms that "we had not agreed to a reconstruction of events; our intention was to have a view of the scene." It is equally clear that what they were intent upon viewing was the extent to which the view from Mr Collins' balcony was blocked by the wall.[18]Mr Rule, who has argued this case on behalf of the appellant with determination and vigour, relies upon the principle which he submits is to be derived from Parry v Boyle that it is wrong in principle for a member of the court to take part in a reconstruction, thereby directly involving the court and fact-finding tribunal in the contested reconstruction.[19]Parry v Boyle was a case concerned with a visit to the scene by magistrates in the absence of all parties in which is cited the decision in Goold v Evans & Co [1951] 2 TLR 1189, where Denning LJ said (page 1191):
"It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. The tribunal sees the real thing instead of having a drawing or a photograph of it. But, even if the view is not evidence, the same principles apply. The judge must make his view in the presence of both parties or, at any rate, each party must be given an opportunity of being present."
Denning LJ went on to suggest a possible exception when a judge goes by himself to see some public place such as the site or a road accident.[20]General knowledge of the location of an accident is one thing but, for my part, I would be concerned if that exception in relation to a visit specifically intended to inform the judge about a case that she is then trying was relied upon, bearing in mind the importance attached to the principle that justice must both be done and be seen to be done by all those concerned with it.[21]Mr Rule argues that because one of the justices parked his motor car in a slot which was the relevant parking space, he was involved in the production of the real evidence which was a reconstruction of the case. In those circumstances he argues that the tribunal entered into the arena of the contested evidence in the trial which was impermissible and to the prejudice of the defendant in the case.[22]Mr Fields, for the Crown Prosecution Service, submits the fact the car driven by one of the justices was parked in the space occupied by the victim's car did not amount to participation by the justices in a reconstruction.[23]We return to what the justices said:
"Had we been advised that another car needed to be parked there ..... " - or, I add for my purposes, if no car should have been parked there - "we would have removed our car. No objection was raised by the appellant on his arrival regarding our car being in that space."
[24]In our judgment, the parking by the justices of their car in a space occupied by the victim's car did not amount to impermissible participation in a reconstruction. It is absolutely right to report that the defence advocate wished to address one of the Bench but was told to do so in court. Had the requirement been to arrange some different site inspection then that could have been repeated in court. What was clearly correct was that no submission could be made either to a member of the Bench or to the Bench as a whole otherwise than in the presence of all concerned in the view. So to that extent the legal adviser was accurate to advise that it would be more appropriate to make any representations at court when all parties were present.[25]The case makes clear that representations were subsequently made regarding the vehicle and the differences between the vehicle parked and the vehicle of the victim. These were all perfectly valid arguments. Mr Rule suggests that it was the impossible task for the solicitor to seek to suggest to the magistrates that they had improperly or impermissibly interfered in the view which they had undertaken. But in our judgment that is no different to other complaints - which are frequently made before tribunals of fact - that something has just gone wrong which should not have happened and that steps should be taken to correct whatever it is alleged has not properly been done.[26]We return to the question. In our judgment, in the light of the facts as identified in the case and to which we have referred, no member of the court did take part in a reconstruction. The court was not directly involved in the creation of a contested reconstruction and it did not inhibit the ability of the defence advocate to comment or criticise what had happened. As a result, the question posed by the case simply does not arise.[27]The second question concerns the appearance of bias. During the course of argument Mr Rule appeared to accept that if what had occurred at the scene did not infringe the requirement of a properly conducted visit, the question of bias did not arise. But in reply he emphasised the importance of the appearance of bias to all those involved in the process.[28]We recognise and accept the test identified in the authorities and, in particular, whether - having considered the facts - a fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased (see R v Abdroikov [2007] UKHL 37 at paragraph 15). In my judgment the mere parking of his motor car in the spot occupied by the victim's car does not demonstrate actual, apparent or any possibility of bias in the fact-finding tribunal. Neither, in my judgment, was there anything to prevent the appellant's solicitor making such representations as he wished about what might, albeit accidentally, have gone wrong in the visit when later he came to address the justices in court when a note could be taken and the intention of all was engaged upon the process.[29]I would answer the second question posed in the negative, while again identifying that I, for my part, do not accept that what occurred was a reconstruction.[30]That deals with the questions raised by the case. But there does remain one important issue revealed not so much by the case but by the other material which the parties sought to put before the court.[31]What is critical before any court embarks upon any view is that there is absolute clarity about precisely what is to happen on such a view, about who is to stand in what position, about what (if any) objects should be placed in a specific position and about who will do what. None of this should happen at the scene of a view, which should be conducted without discussion for the very reasons identified in this case, namely that otherwise not all involved can participate. If a misunderstanding arose as to what the purpose of this visit to the site was to be that is indeed unfortunate. From the nature of the case it is clear that the justices viewed it merely as an attempt to see the line of sight from Mr Collins' balcony to the scene of this damaged car in the light of the allegation that the wall blocked Mr Collins' view. That is precisely what they undertook, and I reject the criticisms advanced by Mr Rule in relation to it.[32]For these reasons I, for my part, would dismiss this appeal.

MR JUSTICE SWEENEY: I agree.

[34]MR FIELDS: I understand that there is funding.

LORD JUSTICE LEVESON: No order for costs. There will be legal aid assessment of the claimant's costs.