AB v Crown Prosecution Service (CPS) [2017] EWHC 2963 (Admin)

[2017] EWHC 2963 (Admin)Case No CO/1895/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2017
Before
LORD JUSTICE IRWINMRS JUSTICE WHIPPLE
Between
ABAppellantCrown Prosecution ServiceRespondent
Mr Adrian Eissa (instructed by McGrath and Co) for AppellantMr Leslie Chinweze (instructed by the CPS) for RespondentHearing Hearing dates: 8 November 2017
Judgment Approved

Introduction

[1]This is an appeal by way of case stated against the decision of the justices sitting in the Birmingham Youth Court on 23 January 2017. The justices rejected a submission of no case to answer on behalf of the appellant and found the case against him proved to the criminal standard. Following his conviction, the applicant was sentenced on 10 February 2017. The details of sentence are not relevant.

Background

[2]The background to this appeal is as follows. The appellant was born on 25 September 2000. At the time of his conviction he was 16 years old. It is relevant to record (for reasons which will become apparent) that he is of mixed African Caribbean heritage.[3]On 27 October 2016 he was charged with three offences, namely(1) on 31 August 2016, possession of a bladed article, namely a kitchen knife, in a public place without good reason or lawful authority, contrary to s 139(1) and (6) of the Criminal Justice Act 1988;(2) on 30 August 2016, robbery of David Pendleton, taking a laptop and bag to the value of £300, contrary to s 8(1) of the Theft Act 1968; and(3) on 31 August 2016, resisting a constable in the execution of her duty, contrary to s 89(2) of the Police Act 1996. He pleaded guilty to (1) and (3). No issue arises in relation to those convictions in this appeal. He pleaded not guilty to the robbery offence, (2) above. The trial of that matter took place on 23 January 2017 and is the subject of this appeal.[4]A summary of the evidence before the justices, their conclusions and reasons for them is set out in the case stated. Although we understand very well the pressures which are on magistrates and those who support them, we must record the difficulty we have encountered on this appeal in understanding the magistrates’ reasons for reaching the decisions which are under challenge in this appeal. A fuller record of their reasons would undoubtedly have assisted us.[5]The evidence at the trial was as follows. First, the justices heard from the victim of the robbery, Mr Pendleton. He said that he was returning to his hotel in Bromsgrove St, Birmingham, at about 19.15 in the evening of 30 August 2016, carrying his own laptop in a laptop bag as well as another bag; he was wheeling a suitcase along behind him. There was a pedestrian underpass near the hotel which he entered. He saw someone on the left-hand side facing the wall. Mr Pendleton walked past the person. Mr Pendleton felt uneasy. He turned around and saw the person dressed in a black trainer suit with white at the front, wearing a black hat which was white at the top, with heavy black gloves. Mr Pendleton could not see the person’s face. He could only see the nose. He could not recollect the eyes. Mr Pendleton tried to run but got tangled in the suitcase. He turned again and the person was right beside him. The person held their arms out and approached Mr Pendleton. The person grabbed at the laptop bag; there was a tussle but the person in the end got the laptop bag and ran up the stairs with it. Mr Pendleton gave chase but the person got away. Mr Pendleton called the police. When cross examined, Mr Pendleton confirmed that he had caught sight of the man on four occasions during the course of this episode; that he had said to the police when questioned that the man was white, difficult to age but between 20 and 26, and about 6 feet tall. The hat could have been a hood, possibly a balaclava. There was also a scarf. The black and white suit was not a shell suit but a training type suit.[6]Then the justices heard from PC Knowles. He said he was in patrol in the city centre on 31 August 2016 in an unmarked vehicle. At about 20.20 in the evening he saw the appellant on the other side of the pedestrian underpass. He noticed him because of where he was and the clothing he was wearing. He had a hood up over his head and was wearing a face mask. He was wearing dark clothes, leaning on the railings looking down, on his own. PC Knowles was an experienced officer, and he did not think there was any good reason for the appellant to be there. He watched the appellant for 3 minutes. He thought he was behaving suspiciously. He approached him and showed him his warrant card, and said he wanted to ask him some questions. He ran away. PC Knowles pursued him and caught up with him. The appellant punched him and grabbed his clothing. PC Knowles deployed incapacitant spray in order to bring him under control. Other officers arrived and he was handcuffed and arrested. He gave a false name when first asked. (We infer that the knife which was the subject of charge (1) was found on him when he was searched following his arrest; and that his behavior in running away from PC Knowles and resisting arrest, was the subject of charge (3), although these points are not expressly stated in the case stated.)[7]A subsequent search of the appellant’s home revealed nothing of interest in the appellant’s bedroom and the police moved on to search the appellant’s brother’s room. There Mr Pendleton’s laptop bag and other contents from that bag were found, but the laptop was not found. No clothes matching the description provided by Mr Pendleton were found at the appellant’s address. The case stated does not mention the appellant’s brother beyond stating that the stolen goods were found in his room. We were told at the appeal hearing that the brother was 17 years old at the time of this robbery.[8]The appellant was interviewed under caution on 1 September 2016 in the presence of his mother and solicitor. He answered “no comment” to all questions asked of him.[9]The evidence which we have summarized so far reflects the totality of the prosecution case. The no comment interview was put in evidence by means of a formal admission. No transcript of the interview was in evidence, and a transcript may never have been typed. No details were or are now available about the questions asked in interview.[10]After the prosecution closed its case, the appellant (at that stage represented by his solicitor) submitted that there was no case to answer. The case stated by the justices records that the appellant’s advocate pointed to weaknesses in the prosecution case, specifically, that the identification evidence was poor, that Mr Pendleton had described the robber as being white, aged 20-26, which did not match the appellant, that Mr Pendleton had only seen the robber’s nose, and could not identify him, and further, that the circumstantial evidence amounted only to the fact that the appellant was hanging around the underpass dressed in black clothes the following day. In response, according to the case stated, the prosecutor stated that he was not relying on the similarity of clothing described by Pendleton and found on the appellant the following day, but on the powerful circumstantial evidence in this case.[11]The legal advisor advised the justices in standard terms. He or she summarized the submissions made by defence and prosecution and advised the justices that “if you find the evidence is of a tenuous character – for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence – and that taken at its highest you could not properly convict on it, you should dismiss the case”. No issue arises in relation to the legal advisor’s guidance.

The justices’ decision

[12]The justices dismissed the submission of no case, determining that there was a case for the appellant to answer. The reasons for that conclusion are recorded in the case stated as follows:
“1). The prosecution was not now relying on the clothing it is from a different day; 2). The witness has explained that he was unable to give further description because of the clothing worn by the Defendant”
[13]The trial continued. The appellant did not give or call evidence. Prosecution and defence addressed the justices. The prosecution invited the justices to draw an adverse inference from the appellant’s silence in interview relying on s 34(2)(d) of the Criminal Justice and Public Order Act 1994. The defence solicitor invited the justices to acquit: it was argued that the prosecution could not bolster a weak case by resort to adverse inference; the prosecution was not relying on the clothing or on any type of identification evidence; the circumstantial evidence was only that the appellant was found the next day in the same general location, but that was not sufficient to prove his guilt; and the fact that the property was found in the appellant’s brother’s bedroom was insufficient to point to the appellant as the robber – anyone in the household could be responsible.[14]The justices were reminded of the burden and standard of proof by the legal advisor, again, in standard terms in relation to which no issue arises. They found the appellant guilty of the robbery. Their reasons are recorded in the case stated as follows:
“1) Items stolen from Mr Pendleton were found at the Defendants address. There was no other explanation given as to why these items were at the property; 2) Similarity in behaviour observed by PC Knowles and what Mr Pendleton said in terms of demeanour, time and location are very similar; 3) We found Mr Pendleton to be a very credible witness. His evidence was very concise even when pressed for clarity on the description of the offender; 4) The police officers were also concise and credible witnesses.”

The issues before this Court

[15]The appellant now appeals by way of case stated, and asks this Court to answer two questions: i) Applying the Galbraith test, were the Justices right to reject the submission of no case to answer? ii) Were the Justices right to find the case proved to the criminal standard?[16]The appellant suggests that the answer to both of those questions should be “no”, with the effect that the conviction for robbery should be quashed along with the sentence imposed for it.[17]Mr Eissa appears for the appellant. He did not appear below. He argues that the justices erred in law in rejecting the submission of no case; to reach that conclusion, they must have been satisfied that there was no other realistic possibility consistent with innocence, but on the facts there were other realistic possibilities, for example, that it was not the appellant but his brother who committed the robbery (after all, the stolen lap-top case and contents were found in the brother’s room); alternatively, that one or other of them had simply handled the stolen items but had not themselves committed the robbery. He further argues that the reasons for rejecting the submission of no case are not clear, but the justices may have drawn an adverse inference against the appellant as a result of his silence in interview and/or at trial, when that adverse inference was not open to them in law, alternatively, on the facts was not justified. Taken overall, the conviction is unsafe and should be overturned.[18]Mr Chinweze appears for the prosecution. He did not appear below. He seeks to uphold this conviction. He submits that the justices were correct to conclude that on the evidence the appellant had a case to answer, and they were entitled to convict on the basis of the circumstantial evidence. He points to three strands of circumstantial evidence which, he says, are sufficient to uphold the conviction, namely: i) The fact that the appellant was found to be in possession of the stolen property which was found at his house (albeit in his brother’s bedroom); ii) The similar fact evidence, namely the presence of the appellant the day after the robbery in the same place, at about the same time, and intending to rob; iii) The inference to be drawn from the appellant’s failure to provide any explanation at all for that fact.[19]There are two questions posed for us by the justices in their case stated. The first addresses the submission of no case to answer; the second addresses the justices’ conclusion that the appellant was guilty. We conclude that both questions converge on the same point, engaging Galbraith: were the justices correct in concluding that a properly directed jury could safely convict on the basis of the prosecution case taken at its highest? If they were, then the answer to the second question in this case falls away, because the justices were entitled to convict the appellant - after all, the defence called no evidence and the conviction rested on the prosecution case. If they were not, then the case should have been stopped at the half way point. We therefore concentrate on the justices’ refusal of the submission of no case as the central issue in this appeal.[20]The reasons given by the justices for rejecting the defence submission of no case are recorded in the case stated in terms set out at [12] above. This much is clear: the prosecution had by that stage abandoned any reliance on the similarity of the clothing worn by the appellant when compared with the description of the robber’s clothing provided by Mr Pendleton, and Mr Pendleton had not been able to give a better description of his assailant so that identification was no longer in issue (if it ever had been). This was to acknowledge the state of the prosecution case by the time the prosecution case was closed. However, the justices did not, so it seems, engage with the prosecution’s revised case, now based on circumstantial evidence alone. The circumstantial evidence was not addressed in the reasons for rejecting the submission of no case at all. The justices’ rejection of the no case submission implies that they were satisfied that the circumstantial evidence, taken at its highest, was sufficient for a conviction. But this Court has had to infer the justices’ process of reasoning, which is far from satisfactory. The factors later relied on by the justices in finding the appellant guilty (set out at [14] above) are, we infer, likely to reflect their reasoning at the earlier stage of the dismissal of the submission of no case. The first two of four reasons given by the justices at the end of the case are particularly relevant because they deal with the circumstantial evidence: first, that items stolen from Mr Pendleton were found at the appellant’s address, and that no other explanation had been given as to why these items were at the property (this really being two reasons wrapped together as one); and secondly, that PC Knowles observed the appellant to be acting in the same way, at the same time and in the same place as the robber described by Mr Pendleton. These are the strands of circumstantial evidence on which Mr Chinweze relies in resisting this appeal.

Legal Principles

[21]The starting point is the classic statement of the court in R v Galbraith [1981] 1 WLR 1039, 73 Cr App R 124 (CA). The issue in this case is whether the evidence against the appellant was of such a tenuous character that taken at its highest the jury could not safely convict on the basis of it, so that the case should have been stopped by the justices, pursuant to the second limb of Galbraith.[22]The Court has considered the application of Galbraith in cases where the prosecution relies on circumstantial evidence on several occasions. In G and F v Regina [2012] EWCA Crim 1756, Aikens LJ said this at [36]:
“We think that the legal position can be summarized as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence in which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury.”
[23]In Younis Masih v Regina [2015] EWCA Crim 477, Pitchford LJ giving the judgment of the Court cited a number of earlier cases, including Galbraith and G and F, and stated that the propositions contained in this long line of authority were not contentious: see [3]. We agree. Analysis Adverse Inference

Analysis

[24]The first matter to consider is the adverse inference on which Mr Chinweze relies as a strand of circumstantial evidence against the appellant. On this matter, the parties’ submissions are diametrically opposed. Mr Chinweze argues that the justices were entitled to draw an adverse inference against the appellant because he failed to provide such an explanation when asked relevant questions in interview. This inference was available at common law, because the appellant had been found in “recent possession” of stolen goods and an explanation was called for.[25]Mr Eissa argues that it was not open to the magistrates to draw an adverse inference at all because s 34(2)(c) of the Criminal Justice and Public Order Act 1994 permits such an inference only where the accused has failed to mention any fact relied on in his defence (see s 34(1)(a)). That condition was not fulfilled here, because the appellant had not given evidence, had not relied on any fact in his defence, indeed had not advanced any positive case at all. The statute could not simply be displaced in cases involving recent possession, as Mr Chinweze argued.[26]To support his argument, Mr Chinweze relied on passages from Archbold Criminal Pleadings, Evidence and Practice 2017, paragraphs 21-125-126 and 21-276, and on R v Adebisi [2001] EWCA Crim 2224 where the Court (Grigson J) approved the Recorder’s direction on recent possession which stated this:
“… where the defendant is in recent possession, guilty knowledge may be inferred if the defendant has offered no explanation to account for his possession of the property …”
. But Adebisi did not involve any question of any adverse inference, nor did the Court discuss the impact and relevance of s 34 on the doctrine of recent possession; accordingly, the case does not help Mr Chinweze. If this issue needed to be determined, we would have required much more detailed argument and citation of authority, acknowledging that the issue is a large one which would have an impact far beyond this appeal.[27]But this appeal can be resolved without determining this issue. Even if (without deciding the point) it was open to the justices to draw an adverse inference against the appellant from his silence in interview, it is beyond argument that the justices could only do so if they were satisfied that it was fair to do so, in all the circumstances of the case. In T v DPP [2007] EWHC 1793 (Admin), an appeal by way of case stated from the justices which raised a similar issue, albeit in the context of s 34,

Lord Justice Hughes said at [26]:

“… it seems to me that courts are at risk of falling into the error into which this court fell if in a potential section 34 case they simply ask themselves the question: are we entitled to draw an adverse inference? What the Justices should, I would suggest, invariably do is to ask these three questions: 1) Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not? If so, what is it? 2) What is his explanation for not having mentioned it? 3) If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?”
[28]This three-stage approach must apply, mutatis mutandis, when the Court is considering drawing an adverse inference against the defendant, whether it arises under s 34 or the common law. The justices in this case did not adopt the process suggested in the cases or anything even vaguely resembling it. They did not identify any fact which the appellant could reasonably have been expected to mention in his interview but did not. They did not consider what his explanation might be for not having cooperated in interview, but for choosing to remain silent instead. In this case, as Mr Eissa confirmed to us having consulted his instructing solicitor who was the advocate below, the justices were being invited in terms to consider whether it might have been the appellant’s brother who had committed the robbery. One reason to remain silent in interview might be to protect a family member. This was not apparently considered. The justices did not reach any conclusion on whether that might be a reasonable explanation, or, having determined that it was not, go on to consider whether it was proper in all the circumstances to draw an adverse inference of guilt.[29]The justices plainly did draw such an inference against the appellant in finding him guilty (see reason 1), set out at [14] above). It is not clear whether they drew an inference against him in dismissing the submission of no case; but if they did so at that stage – and for reasons set out above, doing the best we can we think it is very likely that they did - they were in error in the approach that they took. At this distance, and considered through the prism of the case stated, it is not possible for us, as a court of appeal, to decide whether, if the magistrates had adopted the right approach, they would or could properly have drawn an adverse inference from the appellant’s silence in interview. The point must therefore be resolved for the purposes of this appeal in the appellant’s favour, and we proceed on the basis that no such inference was properly open to the justices.[30]If they were not entitled to draw an adverse inference against the appellant from his silence in interview, the answer to the ultimate question, which is whether the conviction is safe, depends on the strength of the other two strands of circumstantial evidence.

Possession of stolen property

[31]The fact that Mr Pendleton’s property was found at the appellant’s home is consistent with the appellant being involved in the robbery the day before, in some way. However, the possession of stolen property does not, in and of itself, prove the case against the appellant, because it is consistent with the guilt of another. It begs the question of who, as between the appellant and other family members, including his brother, was responsible for those stolen items being in the house on 31st August 2016. There is at least one explanation which is consistent with the appellant being innocent of the robbery which is not fanciful, and that is that the appellant’s brother, was responsible for bringing the goods into the house, because it was his brother who committed the robbery.[32]Mr Eissa relies on case law to support his submission that the recent possession evidence is insufficient. He cites Collins and Fox v Chief Constable of Merseyside [1988] Crim LR 247 and Swallow v DPP [1991] Crim LR 610 (DC), which were cases involving the unlawful extraction of electricity from a meter. The conclusion in those cases was that where two people were jointly indicted for an offence, but the evidence did not point to one rather than the other, and there was no evidence that they were acting in concert, both ought to be acquitted because the prosecution had not proved its case against either.[33]We accept the relevance of those authorities. The fact that the lap-top bag from the robbery was found at the appellant’s home has insufficient probative value, in this case, taken alone. The issue is this appeal is whether that evidence, taken with the similar fact evidence, was sufficient for a conviction.

Similar Fact Evidence

[34]The appellant was found close to the same underpass the following evening. He was seen loitering for some minutes, wearing a facemask and equipped with a knife, looking down into the underpass. It is reasonable to draw the inference that he was waiting to rob someone in that underpass. Any properly directed jury would be entitled so to conclude.[35]The justices concluded that the similarity in behaviour observed by PC Knowles and what Mr Pendleton had described in terms of demeanour, time and location, were “very similar” (see paragraph [14] above). The justices had heard Mr Pendleton’s evidence and were entitled to form a view of his evidence and the events described; however, the case stated does not describe precisely what it was in his behaviour and demeanour observed which they thought was “very similar”. Indeed, by reference to the case stated, the similarities would seem rather limited: Mr Pendleton was robbed in the underpass at 19.15, by a man wearing a hat, with black and white clothing on, and there was no suggestion of a knife; PC Knowles saw the appellant outside the underpass on the street at 20.20, wearing a face mask, with black clothes on, carrying a knife. There are obvious differences.[36]Further, Mr Eissa submits with welcome frankness that once it is accepted, as it must be, that the appellant was there on 31st August 2016 to rob, then his presence at the entrance to the underpass, the timing, his behaviour and demeanour are all explained – that is, after all, how robbers go about the commission of the crimes of robbery, and there are not too many other ways of doing it. Thus, it is no surprise that Mr Pendleton’s assailant the evening before might have behaved in a ‘broadly’ similar fashion. Anyone going to that underpass to rob would be likely to behave in that way and exhibit similar behaviour and demeanour.[37]Thus, argues Mr Eissa, the similarities, such as they are, have little probative weight. The issue was not whether the appellant was there to rob on 31st August 2016, he plainly was; but whether, that fact being established, that supported the prosecution case that it was the appellant, and not someone else, who had robbed Mr Pendleton the night before. It remained possible that someone else could have committed the crime the night before: this was not fanciful, but realistic.[38]These submissions have considerable force. The fact that the appellant was there the following night, ready to rob, provides only weak support for the prosecution case that he committed the robbery the night before. Specifically, that fact does little to dispel the possibility that someone else committed the robbery the night before. The real and acknowledged possibility that it was his brother remains. Yet the case stated is entirely silent on the submissions about, or consideration of, the possibility that it was the brother.

Conclusion on the evidence

[39]Mr Chinweze correctly reminds us that we must not examine each strand of the circumstantial evidence minutely, but instead we must look at the combination of circumstances “in the round” and we must ask ourselves, taking the overview: is there a case on which a jury properly directed could convict? (See eg R v P [2007] EWCA Crim 3216 at [23] per Thomas LJ.) Our answer, based on these two remaining strands of circumstantial evidence is no: taking the prosecution case at its highest, the prosecution case was insufficient to permit any reasonable and properly directed jury to convict the appellant of the robbery. Specifically, there remained a realistic possibility that someone else had committed the robbery (see G and F, above).[40]I would wish to add two further comments. The first is that when rejecting the appellant’s submission of no case the justices took no account of the fact that Mr Pendleton’s evidence was inconsistent with the appellant being the robber: contrary to what Mr Pendleton described, the appellant was not white, nor was he in his 20s; further, the clothing described was never found at the appellant’s house. Mr Eissa argues that the identification evidence was not simply neutral; rather, it pointed away from the appellant being the robber and should have been considered as a factor in the appellant’s favour. I reject that proposition. The justices were entitled to conclude that the identification evidence was so equivocal that it had no evidential weight either way.[41]The second is that, when it came to giving reasons for finding the appellant guilty of the robbery, the justices gave four reasons, two of which related to the circumstantial evidence which have been addressed already; the other two reasons related to the credibility of the prosecution witnesses (see reasons 3) and 4) at [14] above). It is difficult to understand why the justices gave these reasons. The prosecution witnesses were not challenged because they were accepted as witnesses of truth. There was only one issue in the case, which was whether the appellant – or someone else – had carried out the robbery. Resolution of that issue was not dependent in any way on the credibility of the witnesses.

Disposal

[42]In my view, the answer to the first question posed is that the justices should have acceded to the appellant’s submission of no case, applying the second limb of Galbraith.[43]In light of that answer, it is not necessary to answer the second question.[44]For those reasons, I would allow this appeal and quash the appellant’s conviction for robbery.[45]After circulating this judgment to the parties in draft, Mr Chinweze confirmed on instructions that the Crown would not seek a fresh trial. Accordingly, no further directions are necessary.[46]I agree that the conviction cannot stand, and I am in agreement with the reasoning of Whipple J. The possession of the proceeds of the robbery in the appellant’s house seems to me strong evidence, which in other circumstances might be conclusive. However, given that there was at least one other realistic possibility, which was not discounted by the magistrates, and which could not be undermined with reference to the proceeds of crime, the matter could not be resolved in that way. Equally, although the similarities of circumstance between the two successive evenings perhaps strike me with more force than they have my Lady, there is insufficient there to reach the necessary standard.[47]Magistrates are not professional judges, and they work under very real pressure, but it is essential that in any case stated, the reasoning by which the court has reached its conclusion is clear. As Whipple J has pointed out, there are points here where that is not the case.[48]A further point here is that it can be problematic to draw an adverse inference from silence in an interview where the questions put to the suspect are entirely unknown.[49]I too would allow this appeal and quash the appellant’s conviction for robbery.