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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 >> Marsh v Director of Public Prosecutions [2015] EWHC 1022 (Admin) (06 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1022.html Cite as: [2015] EWHC 1022 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		6 March 2015

1. SIR STEPHEN SILBER:
2. introduction
3. James Marsh appeals by way of case stated against the decision of the South Essex Justices made on 3 April 2014 convicting him of an offence of an assault by beating, contrary to Section 39 of the Criminal Justice Act 1988.
4. The questions for the opinion of this court are:

1. Were we entitled to consider whether the amount of force used by the appellant was reasonable when no decision could be made as to who the aggressor actually was?

2. Were we entitled to consider whether the amount of force used by the appellant was reasonable when the case advanced by the Crown was that the appellant was the aggressor and therefore any force used could not have been in lawful self defence in any event?

5. Among the facts that were found by the magistrates was the fact that there had been physical contact between the appellant and Mr Sweet, who was the victim, including the appellant headbutting Mr Sweet, which caused him to fall to the floor.
6. The court could not determine who the initial aggressor of the incident was. The interaction between the two men led the appellant to believe he needed to defend himself. He did so as a pre-emptive strike because Mr Sweet approached him with his arms wide and with a puffed-out chest and an aggressive manner.
7. The appellant said he used his head as he suffered osteoporosis, and he could not use his arm as it might shatter. Mr Sweet sustained injuries as a result of his headbutt.
8. The justices were directed to the Justices' Clerks' Society model direction on self defence, and they duly found the appellant guilty in that although the Crown had not proved beyond reasonable doubt that the appellant was the aggressor but they were sure that the appellant had headbutted Mr Sweet.
9. The court then considered the issue of self defence in the light of the situation that the appellant honestly believed he faced and although the court could not identify who the aggressor was, the appellant honestly believed it was necessary to use force to defend himself.
10. The court held that the prosecution had discharged its burden to satisfy the court beyond a reasonable doubt that the appellant went over the top and used force out of all proportion to the anticipated attack.
11. The evidence of the appellant had been challenged by the Crown by way of cross-examination and it was put to him that he had over-reacted.
12. The approach of the magistrates was that the headbutt by the appellant was a disproportionate response by the appellant being approached by someone with a puffed-out chest and his arms reached out to the side. In other words, they concluded that the appellant went over the top notwithstanding his medical condition.
13. The appellant raised a number of issues before dealing with the particular facts with which this court is concerned. In deference to Ms McCulloch, I will deal with those briefly, but she must appreciate the critical factors in this case are the two issues upon which the decision of this court is sought.
14. Her first submission was that the justices were not entitled to convict on the basis which was substantially different to the way in which the prosecution put this case. She amplifies this submission by saying the Crown based its case clearly on the fact that the appellant was the aggressor and the appellant put his case on the fact that the victim was the aggressor.
15. As I have explained the Bench were unsure who the aggressor was. The magistrates are criticised because having been unsure as to who the aggressor was, even thought they found the pre-emptive strike by the appellant was out of proportion to the anticipated test.
16. To my mind, this is an argument which I am unable to accept. The issue of self defence arises when there is a focus, as there had to be in this case, on the aggressive act which was the subject matter of the charge which is headbutting.
17. The issue of self defence was, as I have explained, raised by the appellant. Indeed, it was explained in paragraph 6(g) of the case stated that:

i. "The prosecution had discharged its burden to satisfy us beyond reasonable doubt that the appellant went over the top and used force out of all proportion to the anticipated attack."

18. That is something which is inherent in the allegation which was made by the prosecution of the assault and it was dealing with the defence that had been put forward. There can be no valid criticism of the magistrates for this finding.
19. The second point that put by the appellant is that in the absence of finding who is the aggressor the justices were not entitled to proceed to deal with the issue of self defence. There is absolutely no need to show who the aggressor was where the issue is whether the defendant had used unlawful force.
20. This was made very clear by the Court of Appeal Criminal Division in the case of R v Rashford [2005] EWCA Crim 3377 when Dyson LJ, as he then was, giving the decision of the court explained that:

i. "19: We would agree that the mere fact that a defendant goes somewhere in order to exact revenge from the victim does not of itself rule out the possibility that in any violence that ensues self-defence is necessarily not available as a defence. It must depend on the circumstances.

ii. [...]

iii. Dyson LJ proceeded to state that:

iv. ' in Burns v HM Advocate [1995] SLT 1090 at 1093H, the Lord Advocate General said this:

v. '... it is now clear that the propositions in Hume and Macdonald that the accused must not have started the trouble, or provoked the quarrel, are stated too broadly. It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it or entering into it willingly, cannot plead self defence if his victim then retaliates. The question whether the plea of self defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself. That depends upon whether the violence offered by the victim was so out of proportion to the accused's own actings as to give rise to the reasonable apprehension that he was in an immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury.'

vi. In our judgment this passage in the judgment of the Lord Justice General should be regarded as accurately representing English law as well."

vii. .

21. Dyson LJ concluded on this issue by saying:

i. "There may be a temptation whenever it is open to a jury to conclude that the defendant went to an incident out of revenge or was the aggressor to direct the jury that if they reach that conclusion then self defence cannot avail the defendant."

22. He clearly considered that to be incorrect, and that is an answer to the complaint that has been made by Ms McCulloch.
23. Her third submission is that the justices reversed the legal burden of proof. It is quite clear from the case stated that once the appellant had raised the issue of self defence the court proceeded, quite correctly, to find that the Crown had discharged its burden of proof to satisfy the court beyond reasonable doubt that the appellant went over the top and used force out of all proportion to the anticipated attack. That is a perfectly correct approach, and there is nothing whatsoever wrong with the approach of the magistrates.
24. With that in mind, I now turn to the two issues which this court is required to answer. So far as the issue of whether the magistrates were entitled to consider whether the amount of force used by the appellant was reasonable, the point is made again by Ms McCulloch that, in the fact that no aggressor could be found meant that the court could not go on to consider any defence as the Crown had failed to discharge the burden as to who was the aggressor.
25. With great respect, I disagree with that, because the correct approach is to focus on the wrongful act (which in this case was the headbutting) and to see if that was done in self defence. That was the issue, and that was what the magistrates had to consider, and duly did so. Obviously they could take into account other factors as well, but in my view, there is absolutely nothing wrong with that approach.
26. The second question that this court was asked to answer:

1. "Were we entitled to consider whether the amount of force used by the appellant was reasonable when the case advanced by the Crown was the appellant was the aggressor, and therefore any force used could not have been lawful self defence?"

27. This goes back to a point that was made on a number of occasions by Ms McCulloch that self defence was not available in this case. I have already explained that this is not the law as Dyson LJ explained in the passage which i have just cited in Rashford. Indeed, I agree with the approach of Mr Lloyd that the court was obliged to consider whether the amount of force used by the appellant was reasonable, irrespective of whether the appellant was the aggressor.
28. In those circumstances, I answer both the questions that have been raised in the affirmative and the appeal must be dismissed. Thank you very much.
29. MR LLOYD: My Lord, I do invite the court to consider exercising its discretion to award costs for the Crown in this matter. It is entirely a matter for the court's discretion.
30. SIR STEPHEN SILBER: Why should they be ordered?
31. MS McCULLOCH: My Lord, they usually follow the cause, so --
32. SIR STEPHEN SILBER: Yes. I will order it. Are you asking for an assessment, or not?
33. MR LLOYD: I have a specific figure, if I may, £1,152.00.
34. SIR STEPHEN SILBER: Do you wish to say anything about that?
35. MS McCULLOCH: My Lord, I have not yet seen a breakdown. I am sure my learned friend will provide us with one.
36. MR LLOYD: I can it tell my learned friend what that consists of: it is 10 hours' preparation at £80.00 an hour, and then £160.00 for this morning's hearing which is £1,152.00 when VAT is added.
37. SIR STEPHEN SILBER: Do you want to say anything about that?
38. MS McCULLOCH: My Lord, absolutely. That seems quite reasonable, to be honest.
39. SIR STEPHEN SILBER: I think so, that is very sensible. In those circumstances, I will make that order. Thank you both very much for all the help that you have given me, for which I am very grateful, thank you very much.
40. (THE COURT ADJOURNED) 41. (THE COURT RESUMED IN THE ABSENCE OF RESPONDENT COUNSEL)
40. MS McCULLOCH: My Lord, I cannot apologise enough for recalling you --
41. SIR STEPHEN SILBER: -- no, no. You need not apologise for anything.
42. MS McCULLOCH: My learned friend does not know that I am making this application. My Lord, what happened is, whilst I was on my feet a text message came through from those who instruct me saying the court office had phoned them, and could I please raise an issue of Legal Aid with you because it is not yet in place? They wanted to know whether you would be able to make a legal aid --
43. SIR STEPHEN SILBER: -- I am not sure -- I mean, all I can say is that if I am allowed to, if I have the power to do so, I would do it.
44. MS McCULLOCH: I am obliged.
45. SIR STEPHEN SILBER: In fact, there is somebody, I think, at the back, who is keeping a note, who is sat with you?
46. MS McCULLOCH: My Lord, if I could introduce her, she is actually a pupil at 4 Breams.
47. SIR STEPHEN SILBER: Well, if she could keep a note of what I have said, which is that if I have power I will grant it, but I have no idea if I have power or not.
48. MS McCULLOCH: My Lord, thank you.