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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> K L v Director of Public Prosecutions [2001] EWHC Admin 1112 (19 December 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1112.html Cite as: [2001] EWHC Admin 1112

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Wednesday 19th December, 2001

1. MR JUSTICE RICHARDS: This is an appeal by way of Case Stated from a decision of the Chichester Youth Court, convicting the appellants of an offence of common assault. The relevant facts and issues appear from the Case Stated:

"2. We heard the said charge on 4th June 2001. Before evidence was called we were asked to consider an application to disqualify ourselves. The reason for this was because there had been without prior notice to the court an application for screens in relation to at least one of the prosecution witnesses on the grounds she would feel intimidated having to give evidence in the applicants' presence and had been intimidated. We accept that as a precautionary measure we did ask the usher to fetch the screen before we deliberated and before submissions were heard. However, this application was withdrawn during our deliberations. We found that on the basis the application had been withdrawn we were able to take no note of it. Within that application we heard no real evidence that there would be intimidation. We accepted the young persons all knew each other but felt that this was not uncommon in a Youth Trial. On that basis we felt we could adjudicate fairly. The test as to whether the person at the back of the Court would feel that Justice could continue to be done and whether the defendants could continue to be judged fairly was clearly outlined to us by both the advocates and legal adviser. We did consider the test. We accept in our reasons we erroneously indicated `that the person at the back of the court would not be prejudiced' and that `that person could deal with the trial fairly'. However on the basis of our findings above we feel it can be demonstrated we applied the correct test.

3. We heard the said charge and found the following facts:-

A. The Appellants were in a street, which was lit up with street lamps on the night of 29th September 2000 at approximately 11 PM.

B. As the victim and his girlfriend walked past, the Appellants shouted at the victim `let's get the one in the white jumper'. At this point the victim's girlfriend recognised them. She recognised them because she was in the same year as them both at college. She had been in the same tutor group as [L K] at Bognor Regis Community College. She had been in the same class as [K L] at School. We found that the victim did not know who they were at the time, although he had seen one of them at college and recognised the face.

C. The Appellants grabbed the victim from behind and started to kick and punch him. At this point the victim's girlfriend ran off because she was frightened. We find that she saw two boys attack her boyfriend and then as she ran away she turned back and saw the two same boys attacking her boyfriend. We also find that such a short space of time elapsed between the appellants being recognised by the girlfriend as the ones who shouted, `let's get the one in the white jumper' and the assault that it is the same two boys. It is however right to point out that in evidence the victim's girlfriend indicated she `guessed' the identity of the two boys.

D. An identity parade was held. The victim and his girlfriend identified both appellants.

4. Upon the conclusion of the prosecution case we were asked to consider a submission of no case to answer. The Galbraith test in relation to this was clearly outlined to us by the advocates and our legal adviser. The defence advocates contended that the witnesses had been so discredited by cross-examination that no reasonable tribunal could safely convict on the evidence. The reason for this was that in evidence the victim's girlfriend indicated she guessed the identity of the boys. The defence advocates submitted that guesswork was insufficient to satisfy the Galbraith test and permit the justices to hear the case through to its conclusion. Further they submitted that the identification parade took place in April, the attack having taken place the previous September. The victim himself stated in evidence that he had had discussions with his girlfriend as to the identities of the assailants after the assault. He also stated he had seen them round town in the intervening period.

5. On the basis of the facts found above we felt there was sufficient evidence on which a tribunal properly directed could convict. We delivered our judgement in the following terms. `We do not feel the witnesses have been so discredited at this stage. There is some recognition evidence. The identification parade adds weight to this and we therefore find a case to answer.'

6. Following our decision that there was a case to answer, we adjourned for lunch. We indicated in the hearing of the parties that we were expected at a biannual youth panel meeting later that afternoon. The intention was to place the parties on notice that the case may have to go part heard, although we did not expressly state this.

7. Mr [L] chose not to give evidence and he was advised that inferences might be drawn from this. We heard evidence from just one of the appellants [L K] who said he had not been involved in any assault that evening and he would remember if he had been and that he had just been about town that night.

8. We considered all the evidence and felt that there was sufficient evidence upon which to find the appellants guilty of assault. The Turnbull guidelines were outlined to us at the close of the case and we applied each limb correctly in assessing the identification of the assailants. We felt there had been good recognition evidence in a well-lit street.

9. In our reasons whilst we did not use the words beyond reasonable doubt we did apply the correct test. I.e. we did in fact consider whether the offence was proved beyond reasonable doubt in respect of each appellant. We did indicate that we `did not doubt the identity of the assailants' and that `we accept there is no doubt in our minds that the assailants were the same two people who she had seen seconds before kicking him'. We feel these words are sufficient to indicate we applied the correct test.

10. On 26th June 2001 both appellants were sentenced for the offence. They each received an attendance centre order of 12 hours and were each ordered to pay £50 compensation and £50 costs."

2. In the light of the facts there set out, the justices state the following questions for the opinion of the High Court:

"1. By our requesting screens to be fetched before considering the application for screens to be used. By our continuing to hear the case despite the application for screens. By our erroneous statement of reasons given in paragraph 2 and by indicating at the start of the defence case that we had a meeting to attend later in the day. Would a reasonable man seated at the back of the court believe that we were capable of concluding the case with the necessary fairness and detachment required by Article 6 of the European Convention on Human Rights?

2. Was our decision to find a case to answer one that a reasonable tribunal properly directed could have reached?

3. Having regard to the totality of the evidence, was our decision to convict the accused one that a reasonable tribunal properly directed could have reached?

4. Having regard to the recent decision of DPP v Evans (2001) TLR 438 would the wording that was used in our reasons have made it clear that the proper standard of proof had been applied in coming to our decision on the guilt of the accused?"

3. The first question concerns fairness and the appearance of fairness. The submissions advanced by Mr Whitehead, on behalf of the appellants, start from the uncontentious premise that justice should not only be done, but should be seen to be done. In this case, he submits, certain matters that arose at the trial individually and collectively gave the appearance that the appellants did not receive a fair trial.
4. The prosecution application for screens was made by prosecuting counsel without notice. Before he had finished making the application, the justices requested the usher to fetch the screens in readiness for the first prosecution witness. That, it is submitted, suggests that a decision to allow screens had been made at an early stage and before even hearing defence submissions.
5. Complaint is further made about the comments of prosecuting counsel when applying for screens. He stated that there was a history of intimidation between the relevant parties. Reference was made to the fact that at least one of the prosecution witnesses would feel intimidated having to give evidence in the appellants' presence and had been intimidated. These are comments which it is submitted should not have been made. They were tantamount to saying that the two appellants were young men liable to cause trouble. They suggested a propensity to offend. They amounted to putting in antecedent history and to breaching the presumption of innocence. Those problems were not cured by the fact that the application was withdrawn.
6. In those circumstances, it is submitted, there was a proper basis for the application that the justices should disqualify themselves. In considering that application the justices applied the wrong test, which demonstrated that they did not understand the test or appreciate what was required of them when considering the application. They did not state that they were able to put the adverse comments out of their mind or that they considered them to be irrelevant. In all the circumstances, they should have disqualified themselves. In relation to this, and the first issue in general, stress is placed upon the impression that was created in the minds of the appellants themselves, who were left with the feeling that the trial was not being conducted fairly.
7. The final aspect of the submissions on this issue concerns the comments made by the justices after rejecting the submission of no case to answer and before adjourning for lunch. It is said that the statement that they were to attend a meeting later that afternoon, at a time that left only 1-1½ hours for the hearing during the afternoon, they created an impression of unfairness. Justices must give their undivided attention to the case at all times. Their comments suggested a failure to give such undivided attention to it and a lack of interest in the defence case. They should have been more sensitive to the appearance and impression they gave. It does not matter that what they actually had in mind was to adjourn part heard if necessary. What matters is how a reasonable person might interpret what they said.
8. Reference is made to R v Marylebone Magistrates' Court ex parte Perry and others [1992] Crim LR 514. In that case a magistrate, while hearing a case, had spent some time signing warrants wholly unconnected with the case. The court, in quashing the decision, pointed to the fact that it is a judicial duty to give the case before one undivided attention, and that the devotion of that attention must be both actual and apparent, because it is necessary for the maintenance of public confidence in the fairness of the administration of justice.
9. For the respondent, Mr Harwood-Stevenson submits, first, that if the prosecutor had persisted in the application for screens and had called evidence of intimidation and had satisfied the justices that screens should be provided, even in those circumstances it would not have been necessary for the justices to disqualify themselves, but they could have proceeded to hear the case. The present situation, he submits is a fortiori. If justices were able to continue to hear a case under those weightier circumstances, they were plainly able to continue to hear it when no evidence had been called, when what had been said by the prosecutor implied wrongdoing on either side and alleged only slight intimidation of the witness, and when the application had, in the event, been withdrawn.
10. Further, Mr Harwood-Stevenson submits that since the justices did not in the event have to decide the issue, the question of defence submissions was irrelevant and no adverse inference could be drawn from the fact that the defence submissions were not heard. He submits that the defence request to the justices to disqualify themselves lacked any legal basis. Both the advocates and the clerk informed the justices of the principles by reference to which such an application should be considered. The verbal infelicities in the ruling gave rise to no justifiable adverse inference as to the justices' grasp of those principles, and feelings erroneously entertained by the appellants cannot ground an application to justices to disqualify themselves.
11. As to the justices informing the parties that they had an afternoon meeting, he submits that that gives rise to no adverse inference of bias, reluctance, or lack of interest, but only an unmistakable implication that the case might go part heard.
12. In summary, Mr Harwood-Stevenson submits there was nothing to give rise to a justifiable impression that the justices were incapable of hearing the case with fairness and detachment as required by Article 6.
13. In my judgment, there can be no objection in principle to justices continuing to hear a case after listening to and ruling on an application for the witness to be screened from a defendant. The fact that evidence or submissions adverse to the defendant are advanced in support of such an application does not necessarily prevent fair-minded consideration of the case after the application has been determined, whether it has been allowed or refused.
14. Mr Whitehead conceded that a Bench may continue to hear a trial after determining a contested application of this kind, but he submitted that the situation was different in this case where the application was withdrawn. It seems to me, however, that the principle must apply at least as strongly where the application has not been pursued to a determination but has been withdrawn.
15. It is, of course, necessary to look at whether there was anything in the particular circumstances that made it unfair for the justices to proceed after the withdrawal of the application. In my judgment, there was nothing in the circumstances of the present case that created an appearance of unfairness if the justices continued to hear the case after the withdrawal of the application.
16. I reject the submission that the justices reached a decision on the application at the time when they asked the usher to fetch the screens. The justices say in the Case Stated that this was a precautionary measure. I cannot go behind that. The fact that they asked the usher to fetch screens as a precautionary measure before submissions were heard and a determination was made is of no significance. It was good sense to have them ready in case the justices decided that they were needed. This could not reasonably be taken to suggest that the justices had prejudged the decision.
17. The submission that they decided the issue before hearing defence submissions gets nowhere. It is premised on the contention which I have already rejected that the justices had reached a decision before asking for the screens. In the circumstances that actually occurred, where the application was withdrawn, it did not in the event become necessary for the justices to hear defence submissions.
18. The prosecutor's comments contained, to my mind, nothing of great significance. Reference to a history of intimidation between the parties told one relatively little. Reference to one of the witnesses having been slightly intimidated was not seriously prejudicial to the appellants, and as the justices observed in the Case Stated they heard no real evidence that there would be intimidation. When this is coupled the withdrawal of the application, it is entirely unsurprising, and can safely be accepted, that the justices felt able to take no note of the application. What happened here was not the equivalent of putting in antecedents, let alone something that undermined the presumption of innocence. It did not give rise to unfairness or to the appearance of unfairness.
19. On the basis of what is said in the Case Stated, I am satisfied that in deciding whether to accede to the submission to disqualify themselves the justices in fact applied the right test to which their attention had been drawn; though the reasons that they gave were badly expressed and did not adequately embrace the test they had to apply.
20. In assessing whether there was an appearance of unfairness it is, of course, necessary to take carefully into account the reasons given at the time and the impression they may have conveyed. But I do not accept that the reasons given here would have given rise to an impression that they were unable fairly to proceed with the case.
21. In any event, in considering whether the justices should have disqualified themselves it is for the court to determine whether, having regard to the circumstances as a whole, a reasonable observer would have been left with the impression that the justices would not (or might not) be able to conduct and decide the case fairly. In my judgment, a reasonable observer would not have been left with any such impression here. If the appellants were left with a different impression, then there was no reasonable basis for it.
22. Thus there was no adequate basis for asking the justices to disqualify themselves and the decision they reached was a lawful one, both in terms of ordinary principles of domestic law and in terms of Article 6 of the Convention.
23. Nor was the subsequent indication by the justices that they were expected at a meeting elsewhere later that afternoon capable of creating an appearance of unfairness. There is no substance to the contention that it gave the impression that the case did not have their undivided attention or that they lacked interest in the defence case. It gave nothing more than an entirely fair indication that the case might have to go part heard. The case of ex parte Perry is distinguishable because it is plain on the facts of that case that the court was not giving its undivided attention to the matter before it. That was far from the position here.
24. For those reasons, the appellants' case in relation to the first question is rejected.
25. I turn to consider the second question, concerning the justices' decision to find a case to answer.
26. In developing his submissions on this issue, Mr Whitehead rightly recognises the difficulties he faces when getting into the evidence. The submission he puts forward is based on the well-known principles in Galbraith and Turnbull. It is contended that the justices did not remind themselves of specific weaknesses which had appeared in the identification evidence or of the possibility of mistakes in recognition, even of friends. Specifically reference is drawn to two passages in the evidence. First, the evidence of the victim, where the notes state:

"I knew who was but didn't know name - I know what looks like but not his name. ... I knew who was - but didn't know name - I knew face. Only reason I think I know name is cos [R, his girlfriend] told me."

27. And a little later:

"Only i.d. I have is from [R]."

28. In relation to his evidence it is submitted one sees that his knowledge of the name of the alleged attacker is based only on hearsay, namely what his girlfriend had told him, albeit it is conceded that he subsequently made a positive identification of the appellants at an identification parade.
29. As regards the evidence of his girlfriend, the key passage in the notes is at the end of the cross-examination, where it is recorded:

"I did not see those two doing anything. Made a guess."

30. The submission is that at the very least the fact that the girlfriend was making a guess about the identity of the attackers must cause great concern about the reliability of her evidence, and stresses the importance of approaching the case in accordance with the Galbraith and Turnbull principles and of giving reasons in accordance with those principles.
31. Mr Whitehead submits that even though the principles in question were outlined to them, either in terms or by the nature of the submissions made focusing on the alleged weaknesses of the evidence, it is to be inferred that the justices did not properly understand or apply those principles. The matter is put on the basis of a failure on their part properly to direct themselves when considering the submission of no case to answer. Alternatively, on the basis that the decision they reached was, in the circumstances, one that no reasonable tribunal could have reached.
32. Mr Harwood-Stevenson meets those submissions by pointing out, first, that the justices had been advised as regards the Galbraith test and that the ruling they gave suggests that they had correctly understood and applied the test. He submits that they were under no duty to make specific reference in their ruling to the Turnbull guidelines. Most importantly, he submits that the defence submission that pursuant to the Turnbull guidelines there was no reliable identification evidence was ill-founded. He points out that the observation of the attackers took place in a well-lit street over the space of several seconds. The victim was very close to the attackers and his girlfriend identified them from a distance of a few yards. Both the victim and his girlfriend recognised one of the appellants and the girlfriend recognised the other, and both the victim and his girlfriend picked out both the appellants at an identification parade.
33. Mr Harwood-Stevenson submits that what was said by the victim in the passage from the cross-examination that I have quoted concerns only the name of the attacker. The fact that he was told the name by his girlfriend is irrelevant. What matters is that he picked out both appellants on the subsequent identification parade, and that cannot be said to have been contaminated by his having been told one of the names. Nor did the lapse of time between the assault and the identification parade render the positive identifications at the parade unreliable.
34. As to the cross-examination of the girlfriend, Mr Harwood-Stevenson points out that there was no suggestion that anyone else was present at the scene. What she said about the guess related to the attack not to the presence of the appellants at the scene, and given her age, what she said about a guess could properly be taken to mean inference. It is accepted that there is some confusion in the evidence of the girlfriend, but not sufficient, it is submitted, to render unreliable her recognition evidence placing the appellants at the scene at the time of the assault.
35. In the circumstances, it is submitted that the justices applied the correct principles and acted properly in finding a case to answer.
36. My conclusions on those rival submissions are these.
37. First, it is plain that the justices had well in mind the Galbraith test upon which the application was based and which had been outlined to them by the advocates and the clerk. Their ruling is consistent with a proper application of that test.
38. It does not appear that Turnbull was referred to in terms at this stage of the case, though the specific weaknesses in the evidence alleged by the defence were identified and those were weaknesses that reflected the Turnbull guidelines. It might have been sensible for the justices to elaborate their reasons in relation to the specific points put forward on behalf of the appellants, but I do not consider that the absence of elaboration is fatal to their decision. That is because it is clear from the matters summarised in paragraph 4 of the Case Stated that in reaching their ruling they were aware of and gave consideration to the specific weaknesses in the evidence that were relied on by the defence.
39. I accept what Mr Harwood-Stevenson submits in relation to the quality of the evidence itself. Despite the inconsistency in the evidence of the girlfriend, the justices were entitled to take the view that she was not wholly discredited. What she said in cross-examination about the guessing did not necessarily undermine her recognition evidence as to the presence of the appellants at the scene. It was reasonably open to the justices to place weight on her evidence. It was also reasonably open to them to place weight on the victim's positive identification of both appellants at the identification parade, notwithstanding the lapse of time and the fact that in the interim he had discussed their names with his girlfriend.
40. In the circumstances, it cannot in my judgment be inferred that the justices failed properly to direct themselves when considering the submission of no case, nor can the conclusion they reached be considered an unreasonable one.
41. The case advanced on behalf of the appellants in relation to the second question is therefore also rejected.
42. The third and fourth questions, concerning the reasonableness of the decision and the standard of proof, are linked. It is fair to say that Mr Whitehead did not press his submissions on these questions, recognising that if I had rejected his case hitherto he was unlikely to succeed on these matters.
43. The basic point advanced in his skeleton argument, from which he did not resile, is that the justices directed themselves erroneously as to the standard of proof. They had to be satisfied of guilt beyond all reasonable doubt. The submission made is that identification by hearsay and guesswork carries the necessary implication of, and amounts to, reasonable doubt and that a properly directed tribunal would have acquitted both appellants.
44. As Mr Whitehead anticipated, I have no hesitation in rejecting those submissions.
45. As to the standard of proof, I am satisfied on the basis of paragraph 9 of the Case Stated that the justices applied the correct test. Moreover, I am satisfied that the reasons they gave demonstrated the application of the correct test and did not create the appearance that some lesser standard had been applied. The fact that they did not doubt the identity of the assailants and that there was no doubt in their minds that the assailants were the same two people as the victim's girlfriend had seen seconds before, shows clearly that the test being applied was proof beyond reasonable doubt. There is no material difference between having no doubt and being sure or being satisfied beyond reasonable doubt.
46. The present case is therefore readily distinguishable from DPP v Evans, to which the fourth question refers. In that case the language used by the justices in giving their reasons had given the impression that they had applied the wrong test and had found the appellant guilty to a lesser standard of proof than was required. For the reasons I have given, that is not the position here.
47. Once it is accepted that the justices applied the correct standard of proof, any remaining challenge to the decision must fail. There was plainly evidence upon which a reasonable tribunal properly directed could convict both the appellants, notwithstanding the points that the defence were able to deploy.
48. These grounds of challenge are therefore also rejected.
49. In conclusion, for the reasons I have given, I will answer each of the questions stated for the opinion of the High Court in the affirmative and will dismiss the appeal.
50. Mr Whitehead, two points arise. First, at the beginning of the judgment when I was reading from the Case Stated I realised at an early stage that I was reading from the draft rather than from the final Case Stated.

MR WHITEHEAD: I was reading from the final and it was pretty similar.

MR JUSTICE RICHARDS: For the purposes of the shorthand writer, if you are checking against the Case Stated it is the version at Tab 6 of the file which is relevant.

Secondly, I think there is in a case of this sort automatically a prohibition on reporting that identifies the names of the appellants.

MR WHITEHEAD: Yes, at the relevant time. Certainly at trial they were 16 and 17 respectively. They are older now.

MR JUSTICE RICHARDS: L is 18 already.

MR WHITEHEAD: I think L is 18 as of October. I have their dates of birth here. L's date of birth is 19th October 1983.

MR JUSTICE RICHARDS: So he is now....

MR WHITEHEAD: He is 18 now.

MR JUSTICE RICHARDS: Yes.

MR WHITEHEAD: And K 20th July 1984, so he is 17 now.

MR JUSTICE RICHARDS: What does that mean: that the prohibition on publication of material likely to lead to the identification of an appellant applies to him, but not to L.

MR WHITEHEAD: Yes.

MR JUSTICE RICHARDS: Right. Can the two sensibly be separated....

MR WHITEHEAD: No.

MR JUSTICE RICHARDS: ....or do I have to anonymise L in order to ensure that the protection of the identification of K is achieved.

MR WHITEHEAD: I certainly do not think they can be separated. It may be "[L] and another" would be the way forward.

MR JUSTICE RICHARDS: Yes. Or it is K and L, which I think may be the better course.

MR WHITEHEAD: Certainly that is the way adopted in the notes of evidence.

MR JUSTICE RICHARDS: Yes. It may be necessary, it occurs to me----

MR WHITEHEAD: For the young lady.

MR JUSTICE RICHARDS: ----for reference to the names in the notes of evidence and in the Case Stated to be put in anonymous form.

MR WHITEHEAD: Yes, yes. And indeed for R H, the girlfriend, because she may be 17 now but certainly at the time she was 16, although the complainant was over 18. It may be sensible to initialise her as well, as it were.

MR JUSTICE RICHARDS: Yes.

Mr Harwood-Stevenson, have you anything to add on that?

MR HARWOOD-STEVENSON: Only a word of admiration for the neologism "to anonymise".

MR JUSTICE RICHARDS: Yes. It is much quicker than "render anonymous".

MR HARWOOD-STEVENSON: And wholly consistent with the language from which it comes.

MR JUSTICE RICHARDS: Well, I have no idea whether it is a neologism, but if it is I think it a very appropriate and useful one.

I will check the transcript to the extent necessary with those points in mind.

MR WHITEHEAD: Thank you.

MR JUSTICE RICHARDS: Does anything else arise?

MR HARWOOD-STEVENSON: The question of costs, I suppose. I notice my learned friend blench appropriately. It might be raised, but it is presumably entirely academic in this matter. It is really one pocket to another.

MR WHITEHEAD: I would have submitted their age in principle and the fact they are legally funded.

MR JUSTICE RICHARDS: If there is an application I will rule on it; if there is not I do not need to.

MR HARWOOD-STEVENSON: Even I can take a hint, my Lord. I will endorse my brief, "Upon hint given and no application made".

MR JUSTICE RICHARDS: So be it.

Thank you both very much indeed for your assistance.