AB v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple,Lord Justice Irwin |
| Judgment Date | 24 November 2017 |
| Neutral Citation | [2017] EWHC 2963 (Admin) |
| Docket Number | Case No: CO/1895/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 November 2017 |
[2017] EWHC 2963 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
and
Mrs Justice Whipple
Case No: CO/1895/2017
Mr Adrian Eissa (instructed by McGrath and Co) for the Appellant
Mr Leslie Chinweze (instructed by the CPS) for the Respondent
Hearing dates: 8 November 2017
Judgment Approved
Introduction
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
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.
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.
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.
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.
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.)
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.
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.
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.
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.
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
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"
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.
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...
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