Director of Public Prosecutions v Jobling [2016] EWHC 2707 (Admin)

Case No CO/1201/2016[2016] EWHC 2707 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 26 May 2016
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE NICOL
Between
DIRECTOR OF PUBLIC PROSECUTIONSAppellantv
Between
JOBLINGRespondent
Computer aided transcript of the stenograph notes of WordWave International Ltdtrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr S Heptonstall (instructed by CPS Appeals Unit) appeared for AppellantMr A Birkby (instructed by Michael Henderson and Co) appeared for Respondent
J U D G M E N T (Approved)

LORD JUSTICE GROSS:

[1]I would like at the outset to thank Mr Heptonstall, who appears for the appellant, and Mr Birkby, who appears for the respondent, for their very helpful assistance today. It is fair to note that neither appeared before the magistrates from whom this case arises.[2]The appellant, the Director of Public Prosecutions, appeals by way of case stated on the decisions of justices sitting at Consett Magistrates' Court on 6 August 2015, to uphold a submission of no case to answer advanced on the part of the respondent and to dismiss the information against him.[3]In summary, the allegation was that the respondent had committed the offence of criminal damage contrary to sections 1(1) and (4) of the Criminal Damage Act 1971 by damaging eight vehicle tyres belonging to his neighbours to the value of £680 on 4 May 2014.[4]The offence was captured on a neighbour's CCTV system. The respondent was identified in the footage by one of the complainants and the neighbour. The justices held that the CCTV footage was of such poor quality that it was impossible to identify the person causing the damage. The justices further took the view that such recognition evidence as there was was undermined because of breaches of Code D.[5]The question stated for the opinion of the High Court is this:
"On the basis of the evidence presented to the court, representations made on the submission of no case to answer and the findings of the court, were the magistrates correct to uphold the submission of no case to answer?"
[6]The paradigm object of the case stated procedure is to distil from the facts as found a question of law for this court. As expressed in Archbold at paragraph 2-91:
"Any party to a proceeding in a magistrates' court who is aggrieved by the conviction order or other determination may question the proceeding on the ground that it is wrong in law [...] by applying to justices to state a case for the opinion of the High Court on the question of law [...] involved."
[7]The case stated procedure is not available to challenge the decision of justices on questions of fact unless it can be said that on the facts found the justices' decision is untenable in law. The question as stated for us does not, with respect, readily lend itself to a distilled question of law. We are not sitting on an appeal of fact. In my judgment the enquiry for us can only be whether, on the facts stated in the case, the decision of the justices was unsustainable in law. In short, were the justices entitled as a matter of law to uphold the submission of no case to answer? If no, then the appeal must be allowed. Conversely, if upholding the submission of no case to answer was a permissible conclusion then the appeal must be dismissed. Whether we would have reached the same conclusion would be neither here nor there. We proceed accordingly and will formally answer the question thus reformulated at the conclusion of my judgment.[8]Before proceeding further, I express some disquiet at the delays in this matter and the number of hearings before the Magistrates' Court. The offence, whoever it was who committed it, took place on 4 May 2014. That is over 2 years ago. Three trial dates were vacated. At least three, perhaps more, pre-trial hearings took place. The upshot is that the trial before the justices took place on 6 August 2015, about 1 year and 3 months after the commission of the offence. Putting it bluntly, that is not good enough. A system of summary justice must of course be just, but it must also be summary.[9]The delays did not end there. The application to state a case was received on 25 August 2015. The decision to state a case was made on 5 October 2015. The case was not finally stated until 17 February 2016, thus nearly 6 months after the application was received. Again, with all respect, that is nowhere near good enough.[10]Overall, therefore, the manner in which this case has proceeded is not an advertisement for our system of summary justice. It is much to be hoped that the Transforming Summary Justice (TSJ) initiative will ensure that such delays are a thing of the past.[11]I turn to the facts. The facts taken from the case may be summarised as follows. The complainants are a Mr and Mrs Jackson. A police officer, PC Peart, stated he was the officer who seized and obtained CCTV footage from a neighbouring property. PC Peart conducted two interviews with the respondent during which the CCTV was viewed. The relevant CCTV footage was then played to the court.[12]The court viewed the original CCTV footage seized by PC Peart and, with the agreement of the parties, a version prepared by ACUME Forensic was viewed. The version contained the original footage and an enhanced version.[13]It is to be noted and underlined that the CCTV footage was very prudently annexed to the case, with the result that we are able to look at it and take it into account. For my part, I regard anything in the footage as being within the boundaries of the case.[14]Mr Jackson's evidence, and he, with his wife, were the complainants, was to this effect. He was the owner of a Nissan Micra which was damaged. He parked his car on 3 May and left it undamaged. On 4 May, he discovered that there was damage to all four tyres of his car. The police were called and as a result the police officers and Mr Jackson went to a neighbour's property, the neighbour being Mr Constantinidies, and viewed CCTV footage from Mr Constantinidies' security camera.[15]Mr Jackson stated that he had knew immediately that the person on the footage who appeared to be causing damage to the vehicles was the respondent, Mr Jobling. He explained this was because he had known the respondent for a number of years, the way he ran across the road, his build and the shape of his head. He stated he had known the respondent since 1999. There had been difficulties between his and the respondent's family. The damage to the vehicles was some £680 in total.[16]In cross-examination, Mr Jackson stated that he did not witness the incident and the identification of the respondent came from the CCTV footage. He stated that he signed a pocket notebook entry after viewing that footage. He restated that the moment he saw the footage he knew it was the respondent. He said he was not present when Mr Constantinidies made his statement to the police. He was 100 per cent certain it was the respondent. It was dark, but he knew that it was the respondent because of his physical appearance and the manner in which he ran. He last saw the respondent run in 2010 in his garden. He acknowledged there was ill feeling between him and the respondent.[17]For his part, Mr Constantinidies, in his evidence in chief confirmed that he had lived in his home since 2010, and had CCTV cameras at his property. He stated that the footage of the incident captured the respondent slashing tyres on both cars. He said he knew the respondent very well as the respondent had been in his house on a number of occasions. He had no doubt it was him due to his face, features and build. He confirmed that both police officers and Mr Jackson were present when he identified the respondent in the CCTV footage.[18]In cross-examination, he stated that both police officers and Mr Jackson came to his house and all four of them viewed the footage. He confirmed he identified the respondent first, followed by Mr Jackson. Both he and Mr Jackson told the police it was the respondent. He stated he recognised the respondent from his facial features. He could tell he was wearing glasses, had a bald head and was plump. He also recognised the walk and run as the respondent's. He accepted he had never seen the respondent run, however, he had seen him walk quite fast.[19]In re-examination, he stated that he and the police officers viewed the CCTV first. He said that he had identified the respondent straight away the first time he had seen the footage and told the police this. Mr Jackson was at that time downstairs and he was in the same room when Mr Jackson saw the CCTV footage.[20]The respondent's police interviews included his assertion that his own home CCTV system had not been recording, but that assertion was later modified in that he agreed it had been working on 4 May until about 12.10, some 10 minutes or so before the offence, whoever committed it, was seen on the other footage.[21]Mr Jobling, the respondent, accepted there were gaps in the hedge between his property and the neighbouring one from which the offender was seen to come and he accepted further that he could get through those gaps.[22]He could not offer an explanation for why, on the CCTV from both his and his neighbours' systems, he appeared to be pointing towards the area of the cars which were damaged several minutes later.[23]There were agreed facts: 1) There was bad blood between the respondent and the Jackson family. 2) The respondent's CCTV system had recorded up to 10 minutes prior to the commission of the offence.[24]The appellant's case was closed and the justices then considered the respondent's submission of no case to answer. The justices were referred to theTurnbull guidelines (on identification evidence) and heard argument that the identifications were made in circumstances which breached code D of the Police and Criminal Evidence Act (PACE) 1984.[25]The justices' conclusions were expressed as follows in paragraph 8 of the case:
"We made the following findings: 8.1 The purported identification of the respondent by the appellant's witnesses having regard to the Turnbull guidelines was unreliable. 8.2 The only evidence that linked the respondent to the alleged offence was the CCTV footage. 8.3 The footage was of such poor quality that it was impossible to identify the person causing the damage. 8.4 The court found that the appellant had failed to establish a prima facie case and upheld the submission of no case to answer."
[26]After the justices had dismissed the case, they expressed concerns as to a clear breach of PACE and asked that the respondent relay those concerns to the police. Before us today, we were much assisted by the opportunity to study the CCTV footage for ourselves.[27]For the appellant, Mr Heptonstall outlined the circumstantial evidence based on at that footage. He submitted that the CCTV footage gave rise to a prima facie case on its own and that was before getting to the recognition evidence.[28]Whatever the justices did when it came to deciding whether to convict or not, there was more than enough to cross the threshold so that the only tenable conclusion for the justices would have been to dismiss the submission of no case to answer.[29]For the respondent, Mr Birkby, apart from relying on his very helpful skeleton argument, submitted that the decision reached by the justices was one that was open to them regardless of whether or not this court or anyone else might have taken a different view.[30]So far as the circumstantial evidence was concerned, in his neat phrase, Mr Birkby submitted that there was a "pool of two". The pool was comprised of a man admitted to be Mr Jobling, who was entering his own home, plus the man who entered with him.[31]There was a question as to who might have done this, Mr Jobling could not be identified and in any event, there was another possible suspect, namely the friend or colleague who walked into Mr Jobling's home with him. The conclusion reached by the justices was not irrational, the CCTV was of poor quality and the appeal should be dismissed.[32]In his reply, Mr Heptonstall said this, the "pool of two" was rather narrowed down by the fact that the man who committed the offence was wearing dark trousers and light shoes, as indeed was Mr Jobling, when he went into his own home. Unless, therefore, he and the other man had changed trousers or Mr Jobling himself had changed trousers, that pool became, in Mr Heptonstall's submission, "a pool of one" The only change of clothing was that whoever committed the offence had a jacket on, otherwise his clothing matched that worn by Mr Jobling when he went indoors.[33]In any event, even if there remained a "pool of two", there was sufficient material for a prima facie case and granted that the point was, to an extent, double-edged Mr Jobling had the motive based on animosity to commit the offence.[34]Mr Heptonstall also replied to a point made by Mr Birkby that the offender had a distinctive gait which could not be seen on the footage which, on all hands, showed Mr Jobling returning to his home. To that, Mr Heptonstall said that when the offence was committed the offender was moving very quickly to commit it, unlike when walking home; and, so far as concerns that gait, even if that was, itself, double-edged, it was the feature immediately picked up by both Mr Constantinidies and Mr Jackson in their recognition evidence. Discussion[35]The law in this area is so well known that it is unnecessary to do more than simply state the points which are not in dispute. The test for a submission of no case to answer is that contained in Galbraith, taking the evidence at its highest, could the magistrates properly advised in law not safely convict?[36]So far as the identification evidence is concerned, there is of course authority inTurnbull that if it is of a poor quality and otherwise unsupported then a case should be withdrawn from the jury or, in this case, magistrates should allow a submission of no case to answer.[37]So far as concerns video identification, there are clear requirements in Code D to guard against group-think contamination or collusion; and code D is quite explicit that witnesses should view the footage one at a time (see Archbold 14-50, 14-56 and 14-65, together with the relevant paragraphs in Annexe A). This is not a matter of undue formalism, in formal settings some contemporaneous records should be made and there should always be some audit trail of how the witnesses reacted to the footage.[38]We keep all those matters of law in mind as we turn to our decision. We have ourselves watched the CCTV footage as I have already indicated, incorporated in the case as it has been. In my judgment, by itself, that footage goes some way to identify the culprit. There is no dispute that the respondent is seen wearing dark trousers and light shoes. The street is quiet, no one other than Mr Jobling and his friend and the offender is seen in the streets over the entire 10 minute period.[39]Though not, it would seem, advanced to the magistrates, but clear on the CCTV footage, is that the hall light in Mr Jobling's house goes out just before whoever the offender is emerges.[40]The offender is wearing dark trousers and light shoes, thereby contradistinction with Mr Jobling's earlier clothing, the offender is wearing a dark jacket.[41]Mr Jobling and the man he was with were both seen pointing to the vicinity of the Jacksons' cars at the time when they were approaching the entrance to Mr Jobling's house. The offender, whoever he is, comes out from behind the hedge of Mr Jobling's house, to make that clear, he comes out from just the other side of the hedge.[42]It is, however, common ground on Mr Jobling's own evidence that there were gaps in the hedge so one could get through from Mr Jobling's house to the other side of the hedge. After the offence is committed, about a minute or so later, the offender goes back to the hedge adjacent to Mr Jobling's house.[43]Against that background, as it seems to me, the CCTV footage viewed in context goes a very long way towards itself establishing a prima facie case. Moreover, the task for the justices was to consider the evidence as a whole. The footage is of a quality in my view that would permit someone who knew the culprit to identify or, more precisely, recognise him.[44]Here there was such recognition evidence from both Mr Jackson and Mr Constantinidies. That recognition evidence was undermined by the breaches of the code: First, the absence of an audit trail. Secondly, the risk (depending on which item of evidence the bench accepted) that there was contamination through watching the footage together, even if in inadvertent contamination.[45]Nonetheless, taken as a whole, I am of the firm view that the only tenable conclusion was that there was sufficient evidence so that a bench properly directed could on one view of the evidence safely convict.[46]Conversely, I am equally of the view that the bench was not entitled to reach the opposite conclusion. That view is fortified by the fact that the respondent was clearly present, he was seen going into his home; and that the culprit emerged from just behind the hedge adjoining Mr Jobling's house and returned there, having committed the offence. To that circumstance must be added the further item of evidence that no one else is seen in that quiet street on all the footage over that 10 minute period.[47]It follows that while respecting the justices' proper concern as to the dangers posed by identification evidence, the decision that they took to uphold the submission of no case to answer is not tenable.[48]In saying this, I am very much myself very much alive to the dangers stressed inTurnbull but the only realistic and tenable conclusion here is that the case was fit to continue. Whether ultimately the justices would have convicted or not is another matter entirely, just as it would have been, had this been a jury trial. When deciding whether they were sure of the respondent's guilt, a bench would need to weigh in the scales the Code D failures and consider the impact that might have had on the reliability of the recognition evidence. They could also at that stage consider such force as they think there is in the "pool of two" argument.[49]For the avoidance of doubt, nothing in my judgment should be construed as expressing any view one way or another on the ultimate outcome of the case had it been permitted to continue. My views are confined to the decision to uphold the submission of no case to answer.[50]With great respect to the justices here, their error, as it seems to me, lay in first possibly conflating the decision to be taken when considering the submission of no case to answer and the decision to be taken at the conclusion of all the evidence and/or secondly in looking at individual items of evidence in isolation rather than together and as a whole. At all events, I am satisfied the decision to which they came was not one which is tenable in law.[51]I would therefore answer the question as reformulated:
"On the basis of the evidence presented to the court representations made on the submission of no case to answer and the findings of the court: were the magistrates entitled as a matter of law to uphold the submission of no case to answer? Answer: no."
[52]It follows that I would allow the appeal and, if my Lord agrees, the case should be remitted to the Magistrates' Court to be tried by a differently constituted bench.

MR JUSTICE NICOL: I agree.

LORD JUSTICE GROSS: Please, the question of costs.

[55]MR HEPTONSTALL: There is, my Lord.

LORD JUSTICE GROSS: We have had a schedule from you and a schedule from Mr Birkby. How much do you want? By saying that, I do not mean you are going to get it. What is the figure?

[57]MR HEPTONSTALL: £1,143.50.

LORD JUSTICE GROSS: Why are you so much more expensive than Mr Birkby, who seems remarkably economic?

[59]MR HEPTONSTALL: My Lords, that is not for my learned friend, that is for his instructing solicitor.

LORD JUSTICE GROSS: That is for his instructing solicitor, oh, right.

[61]MR HEPTONSTALL: As a fixed package, prior to the granting of Civil Legal Aid for proceedings in this court, so it is only up until the conclusion.

LORD JUSTICE GROSS: I see. So you would say you are not that expensive.

[63]MR HEPTONSTALL: I am told that the learned words of Cranston J were "heroic", those that take the work on these scale of fees. For the comparative work, mine is £483, against Mrs Fife's £540, and I was bringing the appeal.

LORD JUSTICE GROSS: Mr Birkby, are you going try and resist it?

[65]MR BIRKBY: Only in this way --

LORD JUSTICE GROSS: -- it seems pretty heroic, really.

[67]MR BIRKBY: To resist it, or the actual application?

LORD JUSTICE GROSS: Both, probably.

[69]MR BIRKBY: Yes. He is on Legal Aid, although of course he did not get Legal Aid in the Magistrates' Courts, he is the beneficiary of Legal Aid for this hearing only. He is of limited means, although I do not suggest that the amount applied for in the circumstances is unreasonable, I simply ask that that be taken into account.

LORD JUSTICE GROSS: Does he get the usual protection on Legal Aid, that it cannot be enforced without the leave of the court, is that not the position, or am I wrong?

[71]MR BIRKBY: I am afraid I have to be honest and say I do not know the answer to that question.[72]MR HEPTONSTALL: My Lord, the standard wording from the GP 48, General Procedure 11 is found at page 1,806 of the White Book.

LORD JUSTICE GROSS: What does it say?

[74]MR HEPTONSTALL: There is a draft order and the appeal is, I have modified it for these contexts: 'The full cost of this appeal which has been incurred by the appellant summarily assessed at, or to be determined, then the respondent's party to whom Civil Legal Services were made available under part 1, LASPO,', I condense it, 'do pay the appellant nil, a fixed amount, or an amount to be determined by a cost judge'.[75]I have seen a form of order that goes beyond that, where the final words may have some attractions to this court:
"Directions in respect of which stand adjourned generally to be restored on the written request of the appellant."
[76]So that would effectively make it a pools order, my Lord.[77]MR JUSTICE NICOL: Well, there is no point in sending it to a costs judge if we can summarily assess the costs now.

LORD JUSTICE GROSS: Yes.

[79]MR HEPTONSTALL: My Lord, yes.[80]MR JUSTICE NICOL: But, if the respondent is legally aided, you are going to have to apply if you want permission to enforce.[81]MR HEPTONSTALL: My Lord, yes.

LORD JUSTICE GROSS: Who do apply to get it enforced?

MR JUSTICE NICOL: You just come back to here, do you not?

[84]MR HEPTONSTALL: My Lord, yes.

MR JUSTICE NICOL: You have to come back to the High Court.

LORD JUSTICE GROSS: One moment. (A Short Pause)

LORD JUSTICE GROSS: Have you paid any costs in this matter so far?

[88]MR HEPTONSTALL: My Lord, I should have included that there would have been an issue fee.

LORD JUSTICE GROSS: No, no, I mean did you pay any costs following the Magistrates' Court hearing?

[90]MR HEPTONSTALL: No, my Lord, because the defendant had Legal Aid there.

LORD JUSTICE GROSS: Was legally aided.

MR JUSTICE NICOL: The defendant had Legal Aid in the Magistrates' Court? I thought he did not.

[93]MR HEPTONSTALL: No, he did not in the Magistrates' Court.

LORD JUSTICE GROSS: No.

[95]MR BIRKBY: In the Magistrates Court' he had only entitled, as I understand it, to possible costs out of central funds but only to the extent of the Legal Aid rates.

LORD JUSTICE GROSS:

[96]We are not going to take more time over it. I am not going to give you your last £3.50, but we make an order for the costs summarily assessed, £1,140. I am entirely satisfied that those are reasonable. Not to be enforced without leave of the court.[97]It goes without saying that should you discover that he is not legally aided or that the Legal Aid point does not stand as a bar then communicate with the court and it is not going to be difficult to get the leave; and ideally, you could do that on paper without the need for Mr Birkby and that is communicated to the court office.[98]MR HEPTONSTALL: Yes, I am grateful, my Lord. The respondent, having the benefit of Legal Aid for these proceedings, the court would need to make an order for details assessment for the cost of the respondent.

LORD JUSTICE GROSS: Are you on Legal Aid, Mr Birkby?

[100]MR BIRKBY: I am, yes.

LORD JUSTICE GROSS: Yes, then we make that order as well. Thank you both very much indeed for your help.

Cited in 1 later judgment