B v Carlisle Crown Court
| Jurisdiction | England & Wales |
| Judge | Sir Anthony May,SIR ANTHONY MAY |
| Judgment Date | 09 December 2009 |
| Neutral Citation | [2009] EWHC 3540 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4636/2009 |
| Date | 09 December 2009 |
[2009] EWHC 3540 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Before: President of the Queen's Bench Division
(Sir Anthony May)
and
Mr. Justice Langstaff
Case No: CO/4636/2009
THE LITIGANT APPEARED IN PERSON AND WAS NOT REPRESENTED
Miss Pritchard appeared on behalf of the Crown Prosecution Service.
(As Approved)
Mr Justice Langstaff:
This is an application for judicial review on appeal proceedings at the Carlisle Crown Court. The application puts in issue, first, the extent of the jurisdiction of the High Court by judicial review in respect of such proceedings and if a challenge by this route is permissible, whether on the particular facts of this case we should allow the application with the consequence that the appeal proceedings are quashed.
The application arises out of events which first occurred in April 2008. The claimant, who will be known simply as B, she being born in 1993 and who was fourteen at the time of events in April 2008, was involved in a fracas, which resulted in an injury to three girls of a similar age. Putting the facts very shortly, it appears that there had been two groups of girls who consisted of the complainants on one side, a girl called K on the other, and at least one other. It was alleged by the Crown that that other was the defendant and it was alleged by the defendant that the girl was called Miss S. The appellant said her involvement was as an unwilling participant. She had been caught up, as she claimed, and thrown into one of the victims.
At trial, the appellant was convicted upon three charges of assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Person Act. They were serious charges. They involved suggestions, accepted by the Magistrates, that she had been engaged in head-butting, in stamping, in the ripping of hair, and kicking. There were five witnesses called for the prosecution including the complainants, who were all teenage girls; and there were four defence witnesses, including the appellant, also all teenage girls.
The appellant appealed following that conviction, which was on 31 October 2008, to the Crown Court at Carlisle. There the appeal was heard over two days, 19 and 20 February 2009, by HHJ Batty QC, together with two magistrates. The same witnesses gave evidence. The court dismissed the appeal. In the judgment of the court given by HHJ Batty QC the court was impressed with the prosecution witnesses and considered that each of them had given evidence without exaggeration. There were minor discrepancies between their accounts, but these were no more than was to be expected. The court declared itself “deeply unimpressed” with the defence witnesses and concluded that Miss B and her witnesses were not telling the truth as to her involvement. As to her witnesses, the court concluded that they were giving evidence simply to assist Miss B. It considered their evidence to be deeply flawed and rejected it in those aspects in which it undermined the prosecution case.
In the course of the evidence of the defence witnesses, given on second day of the appeal so we understand, whilst each of two witnesses were giving their evidence for Miss B, the trial judge intervened to ask them whether they had any, and if so what, previous convictions. Of the three witnesses called by Miss B (apart from herself), one, K, had already pleaded guilty to these same offences. So far as she was concerned, plainly her conviction was in evidence and admissible. But as to the other two, of whom these questions were asked, they were not defendants; they had been subject to no proceedings.
Section 100 of the Criminal Justice Act 2003 provides in subsection (1):
“In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.”
I shall return to the other provisions of Section 100; but note that Section 111 of the same Act provides for the making of rules of court, such as are necessary or expedient for the purposes of the Act; and by subsection (2) requires the prosecution to serve on the defendant a notice if the prosecution proposes to adduce evidence of a defendant's bad character. It is to be noted that under those rules, if the prosecution propose as part of its case to put in evidence the bad character of the non defendant, an application has to be made in advance.
We are told that the intervention by HHJ Batty QC was a surprise to Miss Pritchard, who has appeared before us and who prosecuted the appeal before him and the Magistrates. No questions of this sort had been asked at the Magistrates' Court. No application had been made by the prosecution to adduce such evidence. No such question had been asked of any of the girls of similar age who had been called to give evidence on behalf of the prosecution. There was no objection by the defence counsel who represented Miss B, but it was it is not difficult to understand that, by the time the question had been asked and answered, it might have been too late for any effective interjection; and inevitably he faced the difficulty that it was the court itself that had asked the question, and it was the court who ultimately would have to rule on whether the prosecution had established guilt.
When the decision came to be made—again summarising the facts very broadly—a central issue in the case was which of the two groups of girls was to be believed. The extracts I have quoted from the judgment of the court demonstrate its conclusion. It was a conclusion based expressly on the credibility of the rival groups. Miss B, who may well have been encouraged by her mother, applied by her mother as litigation friend for a judicial review, alleging that the proceedings before the Crown Court had been flawed. In that application, in which the appellant was initially professionally represented and which thereafter was pursued by her mother in person on behalf of her daughter, she drew attention to a number of matters which she considered gave rise to procedural irregularity.
This court gave permission to appeal on one ground only. That related to the admission in evidence of the bad character of non-defendants. Without an application having been made (as the rules required), without the prosecution having requested it, and in a manner which might have seemed to be unbalanced as between the witnesses called for the defence and the prosecution, the former were asked for their antecedents, but the latter were not. Yet this was in a case in which it was potentially material, since the decision was one reached on grounds of credibility.
I then have to turn then to the first of the issues which I identified at the outset of this judgment. It has to be noted that in the R (P) v Liverpool City Magistrates' Court [2006] 170JP 453, Collins J. stated that the normal route for an appeal against the decision of Justices, where it has been alleged that there has been an error of law, is by way of case stated. He also noted that judicial review may be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the Justices, although where it is alleged there has been a misdirection or an error of law case stated is the appropriate remedy.
This, of course, is not an application which concerns the Magistrates' Court; it concerns the Crown Court exercising its appellate jurisdiction in respect of a decision by the Magistrates. There are few authorities which deal with the scope of the court's powers upon judicial review of a decision of a Crown Court on appeal against conviction or sentence from the Magistrates' Court. Of those, it is worth drawing attention to the R v Harrow Crown court, ex parte Dave [1994] 1 All ER 315. In that case the applicant applied for judicial review of a dismissal of her appeal against a conviction for assault occasioning actual bodily harm in the Crown Court. At the hearing of the appeal, evidence had been given for the first time by the complainant's husband. He had a recent conviction for dishonesty, which was not in that case disclosed to the defence in advance of the appeal. The Crown Court had dismissed the appeal and stated that the court:
“…had ample opportunity to hear and assess the witnesses. Our unanimous conclusion is that the appeal must be dismissed.”
The application for judicial review was allowed by the divisional court on the basis that the existence of the complainant's husband's previous convictions should have been disclosed to the defence at the Crown Court hearing. Had the court have known of his recent conviction for dishonesty, it may well have taken a different view of his credibility, which in turn would have been likely seriously to affect the credibility of the complainant. There was a second point, which is not material for present purpose, which relates to the giving of reasons by the court. It is worth noting, however, that that too was a matter of alleged procedural impropriety, albeit that the procedure there related to the giving of reasons as opposed to the conduct of the appeal itself. But it is plain that the divisional court there accepted as appropriate a challenge to a procedure...
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