Robinson v Crown Prosecution Service [2011] EWHC 3654 (Admin)

Case No CO/6725/2011[2011] EWHC 3654 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester M60 9DJDate Wednesday, 30th November 2011
B e f o r e:
MR JUSTICE LANGSTAFF
MR JUSTICE KENNETH PARKER
Between
LUKE ROBINSONAppellantv
Between
CROWN PROSECUTION SERVICERespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D King (instructed by Forbes Solicitors, Preston) appeared for AppellantMr D Thomas (instructed by Crown Prosecution Service, Preston) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE LANGSTAFF: On 11th March 2011 the Crown Court at Preston dismissed an appeal by the appellant against his conviction for using a motor vehicle on a road without insurance.[2]The wording of the charge is of some importance. The original information referred on 27th July 2010 alleged that the appellant: "... used a motor vehicle, namely a Quadzilla Ram Quad Bike unregistered on a road, or other public place namely Promenade Road North, Thornton-Cleveleys when there was not in force in relation to that use such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Road Traffic Act 1988 contrary to section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988".[3]The information was amended on 29th November 2010 at Fleetwood Magistrates' Court to allege that the uninsured use was on Promenade Road North and the Vue Cinema car park, adding that latter location. The trial proceeded on that basis, although it appears that the conviction by the magistrates was in respect of the original wording if the certificate of conviction is to be relied upon.[4]The importance of this change arises because the appellant was, and is, upset by what he saw as a late change designed to secure his conviction, which he thought was less likely under the charge as it originally stood.[5]A police community support worker had, on the facts set out in the case stated to us, found the appellant sitting on the quad bike, stationary, engine not running, in the Vue Cinema car park. The bike had a coating of sand. The engine casing was warm. The cinema car park was on the side of North Promenade Road opposite the beach. The police community support worker asked the appellant why there was sand on the bike, and he told her he had had it on the beach. She asked police officers to attend. They too found the engine casing to be hot, as they did the exhaust.[6]Constable Dawson asked the appellant about the ownership of the quad bike and for his personal details. He issued a fixed penalty notice for using the vehicle without insurance and noted, contemporaneously, that the vehicle was a Quadzilla and various features of it and that the driver, the appellant, admitted that he had been using it on the beach and on the public car park, but said "I did not drive it stupidly, I was sensible". The constable did not witness the quad bike being driven at any location.[7]The appellant was 17. When he went to the magistrates, and later to the Crown Court, he was with his father. He admitted to the bench that he had pushed the quad bike across Promenade Road North.[8]Before the Crown Court on appeal he gave evidence. He said that he had pushed the quad bike across Promenade Road North to the car park. In addition, he said that he had driven it on the beach without insurance, had pushed it to the Vue Cinema car park without insurance and sat on it in the car park without insurance. The stated case records that the judge and magistrates found that the act of pushing the quad bike from the beach to the Vue Cinema car park would necessarily have involved crossing Promenade Road North.[9]The appellant submitted to the Crown Court that if the information had not been amended at the Magistrates' Court, there would have been no allegation that he had used the quad bike on the Vue Cinema car park and there would have been no evidence against him to prove that he had used the quad bike on Promenade Road North, and in those circumstances he would not have given evidence admitting that he had pushed it across that road and the information would therefore have been dismissed. He submitted that the decision to permit the amendment was therefore unfair to him by allowing the prosecution to amend the information in such a way that he had no defence to it.[10]The questions posed for our consideration arising out of those facts, of which the foregoing is only a summary, are these:
"1. Was the amendment of the Information unfair to the Appellant so that it should not have been permitted and so that he should not have been tried by the Magistrates Court or on appeal in the Crown Court upon the amended Information? 2. Was the trial on the amended Information unfair and/or an abuse of the process of the court or of his human rights?"
[11]The matter came before Ryder J on 31st October 2011. He was told on behalf of the appellant that the first question was no longer being pursued. Thus, in this hearing we have been concerned only with the answer to the second question. We should also make it clear that the case stated is against the decision of the Crown Court. Although the Magistrates' Court decision is necessary factual background, the statement of case is in respect of the Crown Court decision only. It would have been open to the appellant, even though 17 and unrepresented at court, to have stated a case in respect of the conduct of the proceedings against him in the Magistrates' Court had he wished to do so.[12]The second question, however, was observed by Ryder J to include the question whether the Magistrates' Court and/or the Crown Court should have warned or advised the appellant about his privilege against self-incrimination. That, as I see it, involves us focusing on the Crown Court, for the reasons I have just given, and not on the Magistrates' Court. Submissions[13]Mr King has eloquently and effectively advanced what can be said for the appellant. His case is that the appellant was not advised at all or adequately at the magistrates’ court in respect of there being no requirement upon him to give evidence, or as to the inferences that might be drawn against him if he did not do so, nor was an adjournment allowed. As a matter of fact, Mr King realistically concedes that we would have to conclude, if this fact were open to us, that probably no adjournment was asked for. He maintains that Mr Robinson was ill-informed as to the requirement upon him to give evidence and/or the inferences that might be drawn if he did not do so and was confused about it, and that this was not remedied at the Crown Court. There he was, 17 years old, unrepresented, feeling manipulated by the way in which proceedings had been conducted, and this constituted an abuse of process.[14]In paragraph 26 of Mr King's skeleton argument he says that the transcripts of the appeal, which are fully before us, make it clear that the appellant was claiming that on the basis of the information as originally drawn he believed that there was no evidence to support the offences; in legal terms, that there was no case for him to answer and no need for him to give evidence. It was only by the amendment to the information, by adding the cinema car park, that there was possibly a case for him to answer, thus requiring him to give evidence. He observed that the appellant was clearly expressing that he felt that the amendment was unfair on the morning of the trial.[15]However, it was accepted that at the Crown Court, said Mr King orally before us, first His Honour Judge Baker tried "valiantly" (that being the word Mr. King used) to understand the point which the appellant wished to make in respect of the change of information. On paper, in the words of the skeleton argument, the judge was "painstakingly endeavouring" to ensure fairness for the appellant, and he did tell the appellant of his right not to give evidence.[16]At trial there evidence was presented by the prosecution as part of the prosecution case that the appellant had no insurance for the Quadzilla bike. It was submitted that an inference could be drawn by the Crown Court appeal panel from the presence of sand on the bodywork and the heat of the engine and exhaust, and there being no suggestion that anyone else was in control of the quad bike at the relevant time, coupled with the admission to the community support worker, that the appellant must have got the bike from the beach to the car park, and at the time he did so or immediately before that its engine had been running. In addition, the claimant made admissions at the scene as to his ownership and use of the vehicle. Thus, as matters stood at the conclusion of the prosecution case there was, in my view, plainly a case to answer, upon which, if there had been no satisfactory answer given in evidence by him, the appellant would have been bound to have been convicted. It is not necessary as a matter of law to show that someone actually saw the appellant riding or pushing the bike across the road or in the car park if it was an inevitable inference on the facts, unless otherwise satisfactorily explained, that that is what must have happened.[17]Thus, at the conclusion of the prosecution case the question arose, as it always does in a criminal trial at which a defendant is present, whether the defendant would give evidence. In the transcript there is this exchange:
"JUDGE BAKER: Mr Robinson, that's the prosecution's case against you. You have the right, if you wish to, to give evidence yourself, which is to come into the witness box and tell us on oath or on affirmation what you would like us to consider and we shall. You don't have to give evidence of course but it may be harmful to your case if you don't, because without any evidence from you, we won't have any explanation from you as to why you did or didn't do anything that we have heard about."
The appellant did not immediately respond but discussed other matters. There was an adjournment (see page 32 internal to the transcript) and then

the judge returned to the same theme in what began as similar words:

"We have now heard the evidence that the prosecution intend to rely upon. If there is any evidence that you want to give us concerning your use of the vehicle on Promenade Road North and the Vue Cinema car park, you are of course at liberty to do so, but we can only try the case on the basis of what the allegation is and what the evidence is. Do you want to give evidence about anything, or is there anything that you --"
And at that point the judge was not allowed to continue because the appellant interrupted. Mr King accepts that that is the only fair way to read the transcript. He said:
"MR ROBINSON: Yes, I would like to say some things, your Honour. JUDGE BAKER: Would you come into the witness box then, please."
Mr King asks us to see in that exchange that Mr Robinson may well have had in mind returning to his theme that the treatment of him at the magistrates had been unfair. In context is reads more naturally to me that he was keen to give evidence. But, whatever be the reality of that, when he began in answer to the judge, he being unrepresented and being invited to tell the court about his use of the vehicle on the day in question, he said:
"I totally admit to pushing my bike across North Promenade, as I said at the start"
. That was a reference back to his earlier setting out his case to the judge in which he accepted he had no insurance and he had pushed the car across the road, which was in context sufficient to amount to use of the vehicle within the statute as that statute has been interpreted in caselaw. It was a reflection of words which the appellant spoke earlier (see page 56 of the bundle, page 5 of the transcript internally) in which he said:
"I admitted it at the start. I admitted it at the start pushing my bike across the road, but it shouldn't have even gone there anyway. I shouldn't be here never. There's no evidence of me doing anything. Nobody's seen me do nothing. There was no witnesses of any of my other -- it was only the policeman who said he'd seen me in the car park. What's happening? I weren't seen on North Promenade on my quad bike by anybody so there was no witnesses. There was no evidence of me even being there, so how did I end up in court?"
[18]As I have already observed, the prosecution, in the circumstances of this case, given the evidence that there was, did not need to produce a witness who saw the appellant actually pushing or riding the bike across Promenade Road North.[19]However that may be, the conclusions to which the Crown Court came are set out at the foot of page 88 of the bundle (page 37 of the internal transcript) between letters G and H, in which the judge made the very point I have myself just made in which he held that it was open to the court, even in the absence of any eye witness evidence of a witness saying that they saw him riding at Promenade Road North, to infer that because of the condition of the quad bike at the time it was found - because of the sand, because of the heat of the engine casing and because of its close proximity to the beach - that it had been used in some way to be moved across from the beach to the car park, and he noted that that was in fact what the appellant had told them. He concluded that it would be right to infer that he had pushed it from the beach to the car park and they could be satisfied beyond a reasonable doubt of that.[20]There is no objection before us in respect of the fairness of that conclusion. The issue is whether the trial process on appeal was or was not abusive. The respondent for his part, by Mr Thomas of counsel, submits that there was here no abuse.[21]The test as to whether there is abuse is set out in R v Derby Magistrates ex parte Brooks [1985] 80 Cr App R 164, per Sir Roger Ormrod, and in R v Beckford [1996] 1 Cr App R 94. It involves the court being satisfied that it is either unfair for someone to be tried at all - not this case - or that no fair trial is possible because of an unfair procedure - that is, if anything, the slot within which this case has to be put if it can be placed in any way in a category of abuse.[22]The argument boils down to whether the judge adequately warned the claimant that inferences might be drawn against him if he did not give evidence.[23]This is not a case, it must be added, in which the claimant says that he was so warned by a court as to give evidence when otherwise he would not; it is simply that it is unfair of a court not to use the words of the practice direction to tell a defendant of the inferences that might be drawn against him or her pursuant to section 35 of the Criminal Justice and Procedure Act of 1994. The practice direction requires the judge to say words in these terms:
"You have heard the evidence against you. Now is the time for you to make your defence. You may go into the witness box and give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the (court) (jury) may draw such inferences as appear proper. That means the (court) (jury) may take it into account against you."
It continues, but in terms which are not material here.[24]Mr King accepts that the judge here, in the extracts which I have quoted, dealt with the ability of the defendant to give evidence. He says that the judge did not draw specific attention to the warning contained in the practice direction that inferences might be drawn against him if he did not do so. Mr Thomas accepts that part of the direction was lacking, whether or not the judge had intended to move on to it in the course of the passage I have cited during which he was interrupted.[25]Does it make it unfair in the context of this case, bearing in mind the perception of the defendant but judging the conduct of the trial by looking at the way in which the court itself conducted matters, for this warning not to be given?[26]For my part, I cannot see that it did. Here, the absence of any such warning did not cause the defendant to remain silent when, had the warning been given, he might have spoken. Had it been given it would have been an additional reason for him to wish to give evidence, it could not have been otherwise, but he had already decided to give evidence and, on my reading of the exchanges, wished to do so. He may have considered that the evidence he wished to give was also, or largely, about the way in which he had been treated at the Magistrates Court, but he wanted to give evidence.[27]The way in which the matter was expressed in the passages I have quoted appears tailored to the fact that the defendant here was 17. The words are more accessible, in my view, than those in the practice direction, which suffer perhaps from a slight degree of legal formalism. We have to be concerned, and I am concerned, with fairness, which is a matter of substance and not a matter of form. I reject altogether the submission that unless a judge addresses a defendant precisely in the terms of the practice direction the trial thereafter is necessarily unfair and, I should add, so significantly unfair as to amount to an abuse of process. In my view, that could never be said here.[28]In conclusion, as to the allegation that there was here a wrongful procedure, I cannot accept it. The judge bent over backwards to ensure fairness, as is accepted. There is no reason for us thinking that the appellant was not given every assistance, even though he was not represented.[29]Did he in any event ensure his conviction by what he had said at the magistrates, having been persuaded there to give evidence when his better course might have been not to do so? In my view, that is not so on the facts here. As found by the Crown Court, he admitted to the police community support worker that he had used the bike on the beach. It was obvious that he was in the car park and the bike had moved from one location to the other. There was no-one else of whom it could be said that they had done that, other than the appellant. When he said what he said to the police community support worker, were there any grounds for thinking that he might have believed then that the focus of any police inquiry would be on Promenade Road North to the exclusion of the Vue Cinema car park? There would be no reason to think so. Thus, whichever way I look at this case, I can see no possible abuse.[30]Of the one question which remains for our determination, I would answer that question in the negative and I would therefore dismiss this appeal.

MR JUSTICE KENNETH PARKER: I agree.

[32]MR THOMAS: My Lord, there is no application for costs in this matter.

MR JUSTICE LANGSTAFF: Thank you both.