Knight v Director of Public Prosecutions [2012] EWHC 605 (Admin)

Case No CO/6998/2011[2012] EWHC 605 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 31 January 2012
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE IRWIN
Between
GARY DEAN KNIGHTAppellantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Hugh D'Aguilar (instructed by Sethi Partnership) appeared for AppellantMr James Boyd (instructed by CPS) appeared for Respondent
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an appeal by way of case stated challenging the conclusion of the Justices for the County of Buckinghamshire, sitting at Aylesbury, on 9 December 2010. They convicted this appellant of an offence contrary to section 4(1) of the Public Order Act 1986, but acquitted him of two separate assaults against nightclub bouncers.[2]The facts related to a dispiriting incident in the early hours of Sunday, 20 June 2010. The facts found are fully set out in the Case Stated, together with an account of the different evidence from the various participants. But I can explain it shortly by saying that a fight had broken out and two doormen had accosted this appellant in the mistaken belief that he had been responsible for a particularly serious incident in which this appellant's friend, a Mr Shawcross, had been hit over the head with a glass bottle. It was alleged by the prosecution that this appellant had separately assaulted two doormen, a Mr Purdom and a Mr Corcoran, and it was also alleged that when they had succeeded in restraining him against a wall, he had struggled violently and attempted to break free.[3]The justices, in their full and, if I may say so, fair case stated, explained that the discrepancies in the evidence from the two doormen was such that they were not sure that this appellant was guilty of either of the two assaults, but they continued to consider whether his behaviour when he had been restrained was such as to amount to an offence under section 4(1) of the 1986 Act.[4]I should make it clear that the doormen believed when they were restraining this appellant that he was trying to get back into what turned out to be a serious incident of violence. On the contrary, as the justices appear to have accepted, all he wanted to do was to break free from their hold and to gain access to help his friend, who by that time was lying helpless on the floor, apparently bleeding and covered in blood.[5]The justices found in their case stated as follows:
"That the defendant admitted in his interview and in evidence at the hearing that he was trying to push through the bouncers and break their hold as he stated, that he did not care about anyone else or any rule or regulation or how he was supposed to do things. He was not prepared to wait for the police to arrive. He wanted to get to his friend. He was on a mission to get somewhere and accepted that the bouncers would not know who he wanted to see and would have probably been thinking that he was going for someone again. Therefore we found that Mr Knight [the appellant] used threatening behaviour with the intent to cause Mr Purdom and Mr Corcoran to believe that immediate unlawful violence would be used against them."
[6]Later, having set out substantial parts of the evidence, they concluded under the heading "Section 4 Public Order Act offence":
"We were of the opinion that the prosecution had proved beyond reasonable doubt that Mr Knight used threatening behaviour with the intent to cause Mr Purdom and Mr Corcoran to believe that immediate unlawful violence would be used contrary to section 4(1) and (4) of the Public Order Act 1986 because in his evidence in court Mr Knight said once he was restrained and saw Mr Shawcross covered in blood he was trying to push through the bouncers and break their hold to get to his friend. In his interview and in evidence at court he accepted the bouncers' reasons for having restrained him. In the interview he said 'I just wanted to get to him. I don't care about anyone else or any rule or regulation or how you are supposed to do things or I'm supposed to stand against a wall and wait for you guy (police) to turn up. I wanted to get over there. I'm on a mission to get somewhere. They don't know who so they're probably thinking I'm going for someone' and accordingly we found Mr Knight guilty of the section 4 Public Order Act 1986 offence."
[7]In fair and cogent submissions, Mr D'Aguilar contended that the factual evidence was not such as to support the justices' conclusion. In particular, the mere fact that he was struggling in an effort to help his friend is insufficient support for the conclusion of fact that he intended to cause the two doormen to believe that immediate unlawful violence would be used against them. In particular, he draws attention to what he contends to be an incomplete and selective account of the interview on which the justices appeared to have placed some reliance.[8]I would tend to agree that the mere fact of what he said subsequently to the police when questioned about public order by the interviewing officer was not a sufficient basis upon which to found a conclusion as to his intention at the time. It was of course some evidence of his state of mind at the time and shows his frustration and aggression at not being able to save his friend. But far more important was the evidence of his actions from which the inferences of his intention could be drawn.[9]It is plain that the justices were entitled to find that he was struggling and was not acquiescent in the restraint in which he was held by those bouncers. In those circumstances, as it was put so vividly by my Lord in the course of argument, his actions were such that the justices were entitled to infer that his state of mind was, "Unless you let me through, unless you let me get to my friend, I will assault you". That, as it seems to me, is a full and accurate description of his state of mind at the time, and certainly a conclusion that the justices were entitled to draw from the fact of his behaviour while he was struggling to break the doormen's restraint. That, in my view, is sufficient evidence that he had an intent to cause those doormen to believe that he would use immediate unlawful violence against them unless they let him through.[10]That, in my view, is a sufficient basis to reach the conclusion that they were correct in their view that there was evidence to support a conviction under the provisions of section 4 of the Public Order Act 1986.[11]Mr Boyd, counsel for the respondent, contends there might have been an alternative basis upon which the justices could have reached the conclusion that an offence contrary to section 4 of the Public Order Act might have been committed. No alternative basis, as far as we were aware, was advanced before the justices. In particular, there is no sufficient material to suggest that it was contended before them that the appellant's behaviour made it likely that the doormen would believe that such violence would be used against them. That was an alternative way the case was put in the information, but there is no sufficient material to suggest that that was the way it was put before the justices. If it was not put in that way, then the defendant was deprived of a fair opportunity of meeting it, and it would not be acceptable for this court to consider whether a conclusion could have been reached on that alternative basis.[12]That it is a distinct and alternative basis is made clear in the decision of this court in Winn v the Director of Public Prosecutions [1992] 106 JPL 881. In particular, the court made it clear that it would not be acceptable to allow a case to go forward on a basis that was not clearly and fairly put to a defendant during the course of his trial before the justices. But, for the reasons I have given, there was sufficient evidence in this case.[13]There is one further aspect which I wish to draw attention to. Mr D'Aguilar, with particular frankness, scotched the suggestion that this defendant might have run a defence of self-defence to establish that the violence threatened was not unlawful on the basis that he was going to rescue his friend. That was not the basis, as Mr D'Aguilar fairly pointed out to us, on which the case was run on behalf of the defence, and he added nor could it have been run since there was no suggestion that Mr Shawcross, the appellant's friend, was being attacked at the time.[14]For those reasons, I would dismiss this appeal.

MR JUSTICE IRWN: I agree.

[16]MR LEONARD: My Lords, there is an application for the respondent's costs, obviously not to be enforced without permission of the court. I understand he is a publicly funded litigant.

MR JUSTICE IRWN: Mr Knight has got legal aid for these proceedings, has he?

[18]MR D'AGUILAR: I believe he does. As far as Mr Knight's personal circumstances is concerned, I have spoken to his mother, he is unemployed. (Pause)

LORD JUSTICE MOSES: We are not going to be making any order as to costs. Thank you very much.