Alden v Director of Public Prosecutions [2014] EWHC 3945 (Admin)

Case No CO/879/2014[2014] EWHC 3945 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 31 October 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE IRWIN
Between
HENRY ALDENAppellantv
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: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Carroll (instructed by Stokes) appeared for AppellantMr B Weaver (instructed by CPS Appeals Unit) appeared for Respondent
JUDGMENT
[1]MR JUSTICE IRWIN: This Appellant, a young man born in April 1995 and therefore 19 now, was convicted on 11 July 2013 of aggravated domestic burglary contrary to section 10(1) of the Theft Act. The offence took place on 7 March 2013. There was a contested trial, together with his co-defendant, Tyrone Bellamy, before the Fareham Youth Court.[2]It appears from the court register of 11 July 2013 that the Appellant was also found guilty of one offence contrary to section 4 of the POA 1986 on the same day, although the register of 23 August of 2013 shows that he was found not guilty and the matter was dismissed.[3]The Appellant pleaded guilty on 26 March 2013 to having an offensive weapon in a public place, namely a baseball bat. He was sentenced on the offensive weapon charge and on the aggravated burglary initially to six months' imprisonment, suspended for 12 months. That was an unlawful sentence because of his age. It was set aside and he was resentenced to a Youth Rehabilitation Order with supervision and unpaid work requirements.[4]The first application before this court is that the magistrates, having stated a case as to the basis on which they rejected the submission of no case to answer and convicted, should be ordered to amend the case as they have stated it. Such an application must be dealt with by this court on the basis of the case stated, but of course responding to submissions as to any defects in the case statement, which can be drawn out.[5]In order to understand the application, it is necessary to set forth some of the context of the case, even though what I am about to do by way of eliciting the facts will be relevant if the court proceeds to the substantive review of the decision.[6]This case arose from an episode at about 5.00 pm on 7 March 2013. There was an incursion at 1, De Lisle Close, Portsmouth, at the house of the Meyer family. Two people attempted to break into the house. One was alleged to be carrying a baseball bat. Glass in the outer front door of 2 was smashed. The house was occupied at that time by Mr Meyer and by his son Ryan, who was 17 at the time. As those who were attempting to, tried to push their way into the house, Ryan Meyer struggled to keep them out, pushing at the inner front door. Mr Meyer, the father, had been asleep. Aroused by the noise, he rushed through towards the front of the house, shouting. At that point the intruders fled. The magistrates found at the point of submission that there was evidence sufficient to permit them to convict that the Appellant was one of the intruders and Bellamy was the other. They subsequently convicted both youths of the offending.[7]There are, as I have indicated, two applications; first, that the court should order the case stated to be amended. Part of the evidence was description and then identification of the Appellant by Mr Meyer. He recognised Bellamy, whom he knew well. He did not recognise the Appellant, although, as the case makes clear, he described the other intruder as wearing a black tracksuit and carrying the baseball bat. When this second intruder returned to the scene in a manner I shall outline shortly, Mr Meyer's evidence was that he kept apologising to Mr Meyer:
"I'm sorry, I'm sorry."
[8]Mr Meyer's account was that his wife turned up at the scene within a very short time of the end of the incursion. He described the episode to her. He named Bellamy and he then described the other youth as, "The spitting image of a neighbour called Jimmy." That is a verbatim quote from the case stated. As soon as she heard this, Mrs Meyer said she knew or thought she knew who that was and she drove off again. She returned, on her evidence, very shortly with the Appellant, whom Mrs Meyer had recognised as the second youth from the incident based on the description given by Mr Meyer. The Appellant, said Mr Meyer and Mrs Meyer, then repeatedly apologised for what had happened.[9]According to the case stated, Mrs Meyer's evidence was unchallenged. Her evidence was read. No application has been made to amend the case in regard to her evidence. The case stated recites her evidence as follows:
"a) Mrs Meyer had arrived at home after the incident. b) Mrs Meyer went to Henry's address as he was a friend of Tyrone and they were usually together and she suspected he was involved. c) Mrs Meyer challenged Henry about his involvement and he said he was sorry but had not caused the damage and would not name the person responsible. He admitted being present. d) Henry agreed to come back to 1 De Lisle with Mrs Meyer because he did not want police attending his address. e) On the journey back Henry kept saying sorry for what had happened."
[10]As to what the Appellant said at the scene, that evidence was corroborated by the evidence of PC Palmer. PC Palmer's evidence, once again, was read and was unchallenged on that point. The case stated also recites sworn oral evidence from PC Palmer as follows, after the reading of the section 9 statement:
"d) PC Palmer said she had not had a chance to review her statement and could not recall what Henry had said but that he was very upset and said a lot of things. e) PC Palmer said her statement had been made within a few hours of the incident. f) After refreshing her memory from her statement PC Palmer said that Henry had said many things to her and the ones she had recalled she had recorded in her police notebook and her statement - namely, 'I have come to get arrested,' 'I came with a baseball bat. It was red,' 'I caused no damage,' 'This is all over £50 that Ryan owes me, I was prepared to fight him but I didn't.'"
[11]The evidence of PC Palmer as to the detail of what was said was the subject of cross-examination according to the case stated. She accepted that he spoke very quickly when excited. She conceded that it was possible that Henry had said, "This is all over £50 that Ryan's friend owes me." She did not recall what was put to her, that Henry said "he had brought the baseball bat for his own protection." However, the case stated makes it completely clear there was no challenge to the apology by the Appellant, to his presence with a baseball bat and, therefore, to the degree of corroboration supplied by PC Palmer to the evidence of Mrs Meyer in regard to those remarks against interest by the Appellant.[12]There was further evidence before the court from a Mr Hurry, a local man or neighbour. He saw two youths together at the scene before the incursion. One had a baseball bat. As he described it to the magistrates, and they recorded it, these two were "gee-ing each other up." Mr Hurry did not see anyone else in the immediate proximity of 1, De Lisle Close. He did hear these two talking about a baseball bat and a knife. At the stage of hearing their conversation, according to the evidence recorded by the court, Mr Hurry said he saw no knife. Subsequently, after he saw the incursion, which he did, Mr Hurry did three things, according to the case stated. He phoned the police, he looked down an alleyway next to number 1, De Lisle Close and there he saw knives, as the evidence was recorded, and the baseball bat, which he recognised as the bat he had seen in the hands of the youth who was part of the incursion. Then Mr Hurry photographed the items on the ground, later showing those images to PC Palmer at the scene.[13]There was also forensic evidence. Bellamy had glass fragments in his clothing. In respect of those fragments, which were eight on his coat, for example, there was unchallenged evidence that they were "indistinguishable" from the glass in the door, giving "strong support" to the association between the broken glass from the door and the fragments of glass on Bellamy. There was no corresponding forensic link to the Appellant, although his hair and clothing were tested. That represents a summary of the key points laid out by the magistrates as to the evidence in the case stated.[14]I now turn to the applications by Mr Carroll as to the deficiencies in the case stated. He complains that the case stated does not recite in evidence in relation to the interview with his client that the client claimed he only possessed himself of the baseball bat to protect himself. There is a fundamental error of law behind this submission. Self-serving remarks in an interview or prepared statement are not evidence in the case unless and until they are adopted in evidence by the Appellant. In any event, as I have just indicated, the magistrates did rehearse in the course of the case statement the suggestion that this Appellant made that claim to witnesses at the scene. I reject that submission.[15]Next Mr Carroll complains that the five-minute period, said to be the period of time between Mrs Meyer leaving and returning with the Appellant to the scene was not included in the case stated. The significance of this is that Mr Carroll says the point is relevant to the potential change of clothing by his client at his home, so as to resolve the inconsistency between the colour of the tracksuit described by Mr Meyer (and, indeed, Mr Hurry) and the grey tracksuit which his client was wearing when he returned to the scene.[16]Mr Weaver for the Respondent points out that on any view the description of this sequence of events means there was a very short time between the departure from the scene outside 1, De Lisle Close of the Appellant, if it was him, and his return. In my view, that point is not significant and does not warrant any amendment or order for amendment by the magistrates.[17]Mr Carroll next complains that the case statement records the evidence of Bellamy. Bellamy gave evidence before the court, Alden did not. In the course of discussion it became clear that there was an ambiguity about this submission. Of course, it would have been an error for the magistrates to record the evidence of Bellamy as affecting their decision to reject the submission of no case, but in my judgment they did not do so and they were, of course, obliged to record the evidence of Bellamy in relation to the conviction. Once Bellamy gave evidence, then that was, within the rules, potentially evidence affecting the case against Alden as well as the case against Bellamy. Mr Carroll, wisely, does not press the point that he placed in his written submissions that the question addressed by the case statement was the wrong one.[18]There is a curiosity about the case stated, as I have already indicated. There is an ambiguity as to whether the magistrates intended to reach a conviction in relation to the section 4 offence. It appears in the end no such conviction was recorded and certainly no sentence passed. It will not appear on this Appellant's criminal record. Mr Carroll complains that the section 4 matter was not dealt with in the case stated. It would, of course, be relevant or might be relevant for the magistrates to do so. Essentially, Mr Carroll's argument was that the reasons for acquitting on the section 4 offence might be relevant so as to explain the basis for convicting on the aggravated burglary. Mr Carroll did submit that the rejection of this charge, if that is what happened, would weaken the credibility of the witness Mr Hurry. As Mr Weaver points out, there was no evidence from Mr Hurry capable of sustaining that conviction.[19]So there is an obvious difference between the body of evidence relevant to the section 4 offence and that relevant to the aggravated burglary. The section 4 offence would depend entirely on the identification at the time by Mr Meyer. At the time of the incident at the taxi Mr Meyer did not know and had not recognised the Appellant. That came later when the Appellant was returned to the scene. The magistrates may, perfectly logically, have concluded that the more restricted basis of evidence in relation to the section 4 offence meant they should not convict, whereas the broader basis of evidence in relation to the aggravated burglary was sufficient to convict. As I have already indicated, there were a number of pieces of evidence present capable of or said to be capable of supporting the conviction. We will, no doubt, address that very shortly.[20]However, I do conclude quite firmly that the absence of a passage in the case stated dealing with the failure or decision not to convict on the section 4 does not undermine the adequacy of the case stated in relation to the offence for which they did conclude the Appellant was guilty.[21]Hence the application that the case should be remitted for amendment is refused.

Cited in 1 later judgment