Divisional Court
| Date | 01 November 1989 |
| Published date | 01 November 1989 |
| DOI | 10.1177/002201838905300402 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
CHANGES
IN
THE
LAW
R. v. Walsall Justices, ex parte W.
Criminal
Courts
are
constantly facing changes in the law. In this
decade
alone
there
have
been
two
major
Criminal Justice
Acts
which
have
been
brought
into
force piecemeal by way of
commen-
cement
orders.
Asituation can
therefore
often arise when the
date
upon
which acase is
tried
can be crucial to
both
the
prosecution
and
defence
when
a
change
in
the
law is imminent.
In
the
present
case ([1989] The Times, May 10),
the
Walsall
Magistrates
sat
on
October
11, 1988, to try a juvenile who
had
been
charged
with causing grievous bodily
harm
contrary
to section
20 of
the
Offences
Against
the
Person
Act
1861.
On
October
12, 1988, section 34 of
the
Criminal Justice
Act
1988 was
brought
into
effect which affected provisions of section
38(1) of
the
Children
and
Young
Persons Act 1933.
The
effect of
this section
and
the
proviso to it was
that
up to
and
including
October
11, 1988, if a child witness was
too
young to give evidence
on
oath
then
his
unsworn
testimony would
not
be sufficient to
convict a
defendant
unless it was
corroborated
by
independent
evidence.
The
effect of
the
changes
introduced
by section 34 of
the
Criminal Justice
Act
1988 was to
remove
the
proviso
and
allow
the
magistrates
to be
able
to consider convicting a
defendant
on
the
basis solely of
the
unsworn evidence of a child.
Upon
the
application of
the
prosecution,
the
magistrates decided
to
adjourn
the
case. In
the
Divisional
Court,
Mr. Justice Saville
was
quite
clear
the
magistrates
had
in effect decided to
adjourn
the
case on
the
basis
that
the
law as it
stood
on
October
11, 1988,
would
not
do justice
(or
as much justice) as
the
law on
the
following day.
Whilst indicating a
defendant
might
not
have an unqualified
inalienable
right
or
entitlement
to be
tried
on
the
law as it
stood
on
the
day which
happened
to be fixed for his trial,
the
Divisional
Court
nevertheless
felt
the
justices
had
acted
unjudicially in passing
382
Divisional Court
aqualitative
judgment
on
the
existing law.
The
judge indicated it
was the function of the courts to apply the law
and
that to allow a
court to choose
whether
or not to do so depending on its view of
the law in this particular case would be to undermine, if not
destroy, the rule of law.
Accordingly, upon an application for judicial review, the decision
to
adjourn
was quashed
and
the justices were prohibited from
proceeding with the trial.
This case will now have general application whenever there are
similar changes in
the
law. Although this was clearly a case where
the
adjournment
was based on the law changing to the advantage
of the prosecution, it will also clearly be of similar applicability
should
there
be changes in
the
law in the future which may benefit
the
defence.
C. E. Bazell
Solicitor
Clerk to theJustices
Banbury
JUSTICES' LOCAL KNOWLEDGE
Paul v.
D.P.P.
One
of
the
strongest arguments
that
can be
put
forward in favour
of continuing the lay magistracy is their local knowledge of the
area
in which they sit. In this particular case ([1989] The Times,
May 1),
the
Divisional
Court
has confirmed yet again that, in
appropriate
cases, justices
are
entitled to use their local knowledge
in coming to a verdict when trying acriminal case.
In this particular case,
the
defendant
was charged
under
section 1
of
the
Sexual Offences
Act
1985 which
created
the offence of
"kerb-
crawling".
The
only evidence before
the
justices was that
the
defendant
had
been
kerb-crawling, had
stopped
near
aknown
prostitute,
talked
to
her
and
she had got into his car.
For
the
defendant
to be convicted,
the
court
had
to conclude his activities
would have
been
likely to cause anuisance to
other
persons in the
neighbourhood.
On behalf of
the
defendant
it had
been
submitted there was no
direct evidence
that
anuisance had actually
been
caused to anyone.
383
Journal
of
Criminal
Law
However,
the
justices
had
taken
into account
their
local knowledge
that
this was an
area
often
frequented
by prostitutes,
that
there
was a
constant
stream
of cars soliciting
and
residents were likely
to be affected.
They
had
accordingly convicted
the
defendant.
The
Divisional
Court
dismissed an
appeal
by way of case
stated
specifically
pointing
out
that
Parliament
had
used
the
word
"likely"
in this section
and
it was
therefore
not
intended
it should be
necessary to call
evidence
that
aspecific
member
of the public
had
been
causing anuisance or
annoyance.
Lord
Justice
Woolf
indicated
it was particularly
appropriate
that
matters
of this
kind
be
determined
by justices with
their
local
knowledge
and
magistrates
were
perfectly
entitled
in this case to
infer
conduct
likely to cause anuisance without having aspecific
witness to say nuisance
had
been
caused
to him.
C. E. Bazell
OFFENSIVE
WEAPON-DEFENCE
OF
"REASONABLE
EXCUSE"
Malnik v.
D.P.P.
It
is a well-known principle of
the
English
Common
Law
that
it is
a
rare
occurrence
for
the
individual to be
permitted
to carry
lawfully a
weapon
for
the
purposes
of "self-defence".
However,
the
circumstances in which an individual
happens
to be
armed
with a
potentially
offensive
weapon
can vary infinitely
and,
in
certain
circumstances, may
amount
to a
reasonable
excuse.
However,
"reasonable
excuse"
has
been
given a restricted
meaning
by
the
courts
in
the
interests of policy. Malnik v.
D.P.P.,
reported
briefly at (1989)
Crim.L.R.
451, is a
prime
example of
that
policy.
The
facts of
the
case
were
as follows:
The
defendant
had
been
acting as an adviser to X
and,
in such
capacity,
had
investigated alleged over-invoicing by a
company
which
supplied
chauffeurs
for
X's
fleet of cars.
On
January
21 of
1987,
the
defendant
discovered
that
two of
X's
valuable cars
had
been
taken
without
authority.
It was
thought
that
one
of the cars
had
been
taken
by J.
who
was known to have atendency for violent
and
irresponsible
behaviour.
The
defendant
and
three
others
set
384
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