KK v Director of Public Prosecutions [2016] EWHC 1976 (Admin)

[2016] EWHC 1976 (Admin)Case No CO/2267/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/07/2016
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE SINGH
Between
KKAppellantDirector of Public ProsecutionsRespondent
R Hallowes for AppellantB Douglas-Jones for RespondentHearing Hearing date: 12 July 2016
Judgment ApprovedLord Thomas of Cwmgiedd, CJ:
[1]This appeal by way of case stated from the Youth Court arose out of the decision of the District Judge to hear at the same time and to give a single judgment where(a) there was a trial of one of two co-defendants who had pleaded not guilty to robbery and(b) there was a Newton hearing of the other defendant who had pleaded guilty to the robbery on a basis of plea which was not acceptable. The case stated involved two main issues: i) Was the evidence of the co-defendant in the Newton hearing admissible in the trial of the other defendant and, if not, was the conviction safe? In the light of the correct concession by the respondent Director of Public Prosecutions that the evidence was inadmissible, we determined at the hearing that the conviction should be quashed and directed that that defendant be re-tried before a different judge as soon as possible. ii) How the Youth Court should best proceed in such a case. As this was a question of more general interest, we stated we would give our reasons later in the light of further submissions that we directed be provided in writing.

The facts

[2]The facts in the case in the Youth Court were relatively straightforward.[3]Sometime after 15:00 on the afternoon of 8 July 2015, SH, a girl of 15 years of age who was with her friend, BC, was robbed of her mobile phone by two people. During a 999 call made at 15:52, very shortly after the incident, SH described her assailants as two black males. A short while thereafter she gave a different description to the police saying one was black and the other Asian. In a witness statement later that day further descriptions were given.[4]At about 16:40 that same afternoon, two male youths were photographed climbing into a house nearby in Hounslow through an upstairs window.[5]Shortly thereafter the police arrested KK, a black youth who was about 15 years of age, and his friend, MGS, who was 14. They were charged with robbery and false imprisonment. An identification parade was held on the following day; MGS was identified by SH and BC, but KK was identified by neither. KK gave a no comment interview.

The proceedings

[6]With appropriate and commendable speed the matter came before District Judge (Magistrates’ Court) Deborah Wright at the Youth Court at Uxbridge two days later on 10 July 2015.[7]KK was represented by a firm of solicitors and pleaded not guilty to the charges of robbery and false imprisonment. MGS who was represented by a different firm of solicitors pleaded not guilty to the charge of false imprisonment, but guilty to the robbery on a basis of plea. Although MGS accepted in his basis of plea that a robbery had taken place and that it had been committed with KK, he denied that a knife was used. The basis of plea was not accepted.[8]It is clear from the case stated and from annexes to the case (the directions forms completed by the prosecutor and the advocates for the defendants and from the written directions made by the judge) that the judge determined then and there that a Newton hearing would be required in respect of MGS and a trial in respect of KK on the robbery and a trial for both on the false imprisonment charge. No representations were made by any party that separate hearings should take place. The judge determined the cases should be heard together but gave no reasons, as no objections were raised. Not only did the District Judge make it clear that the matter would proceed in that way, but paragraph 15 of her directions provided that in the event that legal aid was not available for either of the defendants, BC and SH could be cross-examined under s.38 of the Youth and Criminal Evidence Act 1999 by the respective solicitor advocates who represented them at the hearing.[9]However, the directions did not deal with the detail of what was to happen. No direction was made as to when MGS was to give evidence in relation to the Newton hearing. No-one at that stage seems to have considered any issue as to how his evidence would relate to the trial of KK on the robbery charge or its admissibility in that trial.[10]The judge set the trial date for 27 August 2015 and made clear that if any party wished to raise any legal argument the court should be notified as soon as they became aware of it.[11]On 3 August 2015 the CPS discontinued the charge of false imprisonment against both KK and MGS.[12]Apart from a hearing in relation to bail on 16 July 2015, there were case management hearings on 20, 24 and 25 August 2015. By 16 July 2015 KK was represented by new solicitors who also represent him on this appeal. It does not appear that at any of those hearings any thought was given as to how the trial of KK on the sole remaining charge was to be conducted on the same day as the Newton hearing in respect of MGS. As far as the District Judge was concerned, no-one had objected to her direction that the cases should be heard together, either at the original hearing on 10 July 2015 or at any subsequent hearing prior to the date of the trial, and therefore they would be heard together.[13]MGS had a learning disability and an intermediary was arranged on his behalf.

The hearing on 27 August

[14]On the morning of the hearing, the judge was told by the legal adviser (who was, unusually, sitting with her) that there was going to be an application to sever the two cases and for there to be two separate hearings. It appears that the advocate for MGS first raised the issue as MGS did not want to give evidence against KK because KK was his friend. It is clear that the advocate for KK made the same application.[15]After the judge had gone into court there was some discussion of the position. Representations were made to the effect that there was a conflict between MGS’s case and that of KK and that might prejudice KK’s trial. The judge determined that all evidence should be heard and, if it was relevant, taken into account in respect of KK and MGS. The judge explained in the case stated submitted to this court that she had reached that conclusion as everything had been arranged for that day, an adjournment would be contrary to the interests of all concerned and significant costs would be incurred. The judge concluded that if MGS gave evidence against KK, then that was no different to the situation they would have been in had they both been facing a joint trial. No-one seems to have pointed out that they were not facing a joint trial or raised any issue as to the status of the evidence of MGS in relation to the trial of KK.[16]The judge then held a ground rules hearing in respect of the way in which the two witnesses should give their evidence and in relation to MGS because of his limited understanding. SH and BC then gave evidence and were cross-examined respectively by the advocates for KK and MGS. Various other aspects of the prosecution case were then adduced and the prosecution case closed. A submission of no case to answer was then made by KK’s advocate. The judge found there was a case to answer. His advocate then made clear that KK would not be called to give evidence.[17]MGS was then called to give evidence. In the course of his evidence MGS gave an account that was different to that that had been set out in his basis of plea. On the evidence he gave there was no evidence of any robbery, merely a theft. It then appears that the judge and the advocates all appreciated that a problem had arisen; the advocate for MGS was concerned as to his professional position. It appears that it was decided that the matter should nonetheless continue. MGS was cross-examined first by the prosecution and then on behalf of KK. It is clear that during the entirety of his evidence MGS identified KK as the person who had been with him when the mobile phone was taken and he had been with KK when arrested. The advocates for KK and MGS then addressed the court.[18]At 17:20 the judge gave a single reasoned judgment in the trial of KK and the Newton hearing of MGS. She found that KK had been present and had robbed SH at knifepoint; and that MGS knew that KK had a knife, that his presence encouraged KK and that he laughed while the robbery was taking place. Although I will return to this issue in more detail, it is clear from the reasons of the judge that the judge relied on the evidence of MGS in her conclusion that KK had been the person who had robbed SH using a knife.[19]Very shortly after the hearing the advocate for KK took advice from counsel as to the course the judge had followed. He advised on 17 September 2015 that there should be an appeal by way of case stated. MGS was sentenced on 25 September 2015 and KK on 10 December 2015. Under s.111 of the Magistrates’ Courts Act, there can be no request for a case stated until the end of the proceedings. The provision has the effect that if sentence is delayed no case can be stated in relation to conviction until after the sentence has been imposed. This plainly is unsatisfactory as regards the Youth Court. In accordance with s.111 the request to state a case was made on 22 December 2015 shortly after the imposition of sentence. The case stated was not finalised until 22 April 2016. There are various explanations for the delay, but nothing whatsoever can excuse a delay of some four months in finalising a case which might have to result in a re-trial where the appeal by way of case stated comes from the Youth Court.

Questions for the court

[20]The questions asked of the court in the case stated were:
“1. Was I right to hear the Trial and Newton Hearing together? 2. Was I entitled to rely on the evidence of MSG in the trial of KK? 3. If not, was there sufficient evidence anyway to entitle me to reach the conclusion that KK was guilty of the offence of robbery? 4. Was I right to decline to hear full argument on the application to sever the cases, given the failure of KK’s representatives to comply with my directions and the Criminal Procedure Rules?”
[21]As I have set out at the outset, we considered the second and third questions first.

Was the evidence of MGS admissible in the trial of KK?

[22]It is conceded on behalf of the Director that the judge was not entitled to rely on the evidence of MGS in the trial of the appellant.[23]The reason for that is entirely straightforward. MGS was not a witness who was called by the Crown as part of the prosecution case. Nor was he called by KK. There is no suggestion that he was called by the judge.[24]He therefore was not a witness in the trial of KK and the evidence he gave on 27 August 2015 should not have been admitted or taken into account in any way by the judge in determining the guilt of KK.

Can the conviction of KK be upheld?

[25]We were asked in the third question whether there was sufficient evidence to convict KK without the evidence of MGS. It is clear from the case stated and the fuller note of the judgment of the District Judge (which it was agreed we should look at) that the judge relied on the evidence of MGS in determining that KK was the person who committed the robbery. There were a number of other matters that pointed to KK being one of the two persons who robbed SH:(1) SH’s detailed description in her third account that the robber with the knife was wearing a charcoal hat with a True Religion motif, that he had black shell suit tracksuit bottoms under grey softer material tracksuit bottoms and had a stich like plaster above his eye;(2) the photograph taken an hour later at the house nearby which showed two males wearing track suit bottoms, both black with the stripe down the side; this matched the description given by BC;(3) the photograph also showed that one of the males was wearing a hat and wore two sets of trousers. However in her reasons, the judge relied on her assessment of the evidence of MGS; she set out his evidence that KK and MGS were both present; she found that the evidence of MGS in which he denied that KK had a knife was due to his desire to excuse himself and “in part to loyalty to his friend who was listening to the evidence”.[26]Although there was strong supporting evidence of the identification of KK, it is clear that the judge relied on evidence that was inadmissible. I cannot therefore conclude that her conviction of KK was safe in the light of the approach finders of fact should take to issues of identification set out in R v Turnbull [1976] 3 All ER 549. We did not have the photograph taken at the house; both SH and BC had failed to identify KK at the identification parade; we did not hear the evidence of SH and BC. I cannot unpick the reasoning of the judge and determine in this court that the judge would have convicted KK in any event, given the importance and impact of the evidence of MGS. The conviction must be quashed.

The procedure that might have been followed

[27]I accept that the judge was right to try and consider a process which would take account of the position of the two young witnesses for the prosecution. SH had had a panic attack during the robbery and reliving the experience on two occasions would have been very damaging to her. The judge was also right to take into account, as she strove to do, that it was in the interests of all concerned (the complainants, the defendants and their families) that the guilt or innocence of KK should be determined as soon as possible and that the basis of participation by MGS should be determined with a similar speed, particularly in view of his learning and other difficulties. I would also like to commend the determination with which she proceeded to have the case heard within six weeks of the offence being committed.[28]There can be little doubt that if the situation that has arisen in this case had arisen in the Crown Court, where the guilt or innocence of a person in the position of KK would have been determined by a jury, the usual practice is for the Newton hearing in respect of the person who has pleaded guilty to follow after the conclusion of the trial – see R v Patrick Smith (1988) 10 Cr App R (S) 271.[29]In Smith, Lord Lane CJ, sitting in the Court of Appeal Criminal Division, held that it was possible for the judge who had presided over a jury trial where the guilt of other co-defendants was determined, to take into account in the Newton hearing of another defendant the evidence in the trial. It was not necessary for the prosecution to call the witnesses again and it was sufficient for the judge to hear the evidence of the defendant. The court decided that that course was permissible despite three earlier decisions of the court (Bremer and Rawlings (1974, unreported), Cripps (unreported, 1975) and Michaels and Skobo (1981) 3 Cr App R (S) 188. The decision has generally been followed since 1988, see R v Winter [1997] 1 Cr App R (S) 331, Anderson Smith [2002] EWCA Crim 582 and R v Dudley [2011] EWCA Crim 2805, but not invariably see Mahoney (1993) 14 Cr App R (S) 291 where Smith was not cited – see the comment on Winter at [1997] Crim LR 66. Nonetheless the decision in Smith was severely criticised at the time in commentary on the decision in the Criminal Law Review at [1988] Crim LR 769 at 770 and again by Dr David Thomas in the commentary on Dudley at [2012] Crim LR at 231. We are bound by the decision in Smith. In any event Smith has stood for a long time, there is a sound basis for the decision and there would be very considerable practical difficulties if the decision was not followed and applied (as Dr David Thomas recognised in his comment in 2012).[30]Although the position in the Crown Court is therefore that set out in Smith, it does not necessarily follow that the same process will always apply in the Youth Court or the Magistrates’ Court as there is one significant difference - the judge or the Magistrates have to give reasoned decisions after trials. Almost invariably the practice identified in Smith should be followed with the result that all the evidence in the trial of the co-defendant can be taken into account in the Newton hearing which should generally be conducted by the same judge or bench which heard the trial. It will generally be fair to do this; furthermore the defendant in the Newton hearing would be offered the opportunity to give evidence. Nonetheless there may be very rare cases where that might not be appropriate.[31]In my view the present case would have been such a case. At the trial of KK, although the issue was one of identity, it was clear that the judge in the judgment given at the conclusion of the trial would have to make findings as to whether there had been a robbery involving the use of a knife, as that was the evidence that the two prosecution witnesses had recorded in their witness statements. After the judge or bench had expressly determined in the trial that a knife had been used, it would have been impossible for them fairly to have considered the evidence of MGS that no knife had been used; they would have expressly accepted the evidence of the two prosecution witnesses that a knife had been used and set that out in a judgment.[32]We asked counsel in such a rare case as this (where the same tribunal could not hear the trial and the Newton hearing), to consider whether a procedure could be devised so that the evidence of the two prosecution witnesses did not have to be heard twice. They considered at our request whether the evidence could be recorded and made available to the new tribunal. However, the Magistrates’ Courts have no audio recording equipment and there are statutory impediments under s.41 of the Criminal Justice Act 1925 and s.9 of the Contempt of Court Act 1981 to visual recording.[33]As we were told that the issues that had arisen in this case had never arisen before, I do not think it would be a sensible use of resources to set about the changes that would be necessary to enable evidence given in a trial in the Youth Court to be available to a new tribunal in the Youth Court where the circumstances of the particular case required there to be a new tribunal to determine the Newton hearing.[34]It may be that in such cases consideration could be given to the use of s.28 of the Youth and Criminal Justice Act 1999 to pre-record the cross-examination of the prosecution witnesses by the advocate for the defendant in the trial and by the advocate for the defendant in the Newton hearing, but this must await the making of provision for evidence to be given under s.28 in the Youth Court. Permitting such a practice would require a small departure from convention, as the advocate for the defendant in the Newton hearing would be invited to cross-examine at the same time as the advocate in the trial, but I can see no reason in principle why this could not be done. The effect of the failure of KK’s representative to raise the issue before the morning of the trial[35]As has been made clear, since the inception of modern case management, every judge is entitled to insist that decisions made at pre-trial hearings are decisions that bind for the entirety of the trial. However in the circumstances of this appeal, no thought had been given as to the admissibility of the evidence of MGS in the trial of KK, to the issues in the trial and the Newton hearing and whether it was just for the trial and the Newton hearing to be heard by the same tribunal.[36]Although the judge is to be warmly commended for her determination to proceed as quickly as possible in this case, it was not right to proceed without the matters I have set out being considered and determined. Even though these matters should have been determined before the day of the trial and the Newton hearing, once they had been identified, they should have been properly explored. Once they had been, it would have been obvious that the same judge could not determine both the trial and the Newton hearing. The judge should then have proceeded to hear the trial and adjourned any Newton hearing to a subsequent date before a different judge; such a hearing would have been unlikely, as the probability would have been after the advocate for MGS had heard the evidence of the prosecution witnesses and taken into account the risks to MGS, he would have advised MGS that he should not maintain his basis of plea. It follows therefore, in answer to the fourth question, that the judge should not have proceeded as she did.

Singh J:

[37]I agree.