HSK v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Johnson |
| Judgment Date | 26 August 2022 |
| Neutral Citation | [2022] EWHC 2213 (Admin) |
| Docket Number | Case No: CO/1725/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2213 (Admin)
Lord Justice Dingemans, VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Johnson
Case No: CO/1725/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gerard Pitt (instructed by Just for Kids Law) for the Appellant
Paul Jarvis (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 28 July 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 26 August 2022 at 10:30 am.
Introduction
This is the hearing of (1) an application for an extension of time to file an appellant's notice in relation to an appeal by way of case stated; and, if the extension is granted (2) an appeal by way of case stated from the Justices of the North and Central London Youth Panel sitting at Highbury Corner Youth Court. The appellant was born in January 2005. The appellant has the benefit of anonymity pursuant to the provisions of section 49 of the Children and Young Persons Act 1933.
It is common ground that on 24 February 2020 at Oxford Street, London W1, the appellant unlawfully and maliciously wounded Jonathan Mok Hin Kyong, contrary to section 20 of the Offences against the Person Act 1861 (“OAPA”). The appellant pleaded guilty to that offence on 10 August 2020 in the Highbury Corner Youth Court.
On 19 August 2020 the prosecution was granted permission, despite objections on behalf of the appellant, to bring a further charge on the basis that the appellant had unlawfully and maliciously inflicted grievous bodily harm on Mr Kyong and that the offence was racially aggravated within the terms of section 28 of the Crime and Disorder Act 1998 (“the 1998 Act”). It is not apparent why the first offence alleged wounding and the second offence alleged grievous bodily harm, but nothing has turned on that issue.
A trial took place on 14 December 2020 in respect of the racially aggravated offence and on 4 January 2021 the appellant was convicted of that offence. On 27 January 2021 the appellant was sentenced to a Youth Rehabilitation Order (“YRO”) with additional requirements. Mr Pitt made it clear that if the appeal was allowed he would not be asking for the appellant to be resentenced. This is because the appellant had been sentenced to a YRO for both the section 20 offence and the racially aggravated section 20 offence. Although further requirements had been added to the overall sentence to reflect the aggravating factor of the conviction for the racially aggravated offence, the appellant had complied with those requirements. Further, the appellant is to be sentenced for a further matter later this summer, as appears from paragraph 11 below.
The question from the Youth Court is “were we entitled to convict the appellant of the racially aggravated section 20 offence on the basis that he was part of a group which we were satisfied had attacked Mr Mok Hin Kyong and that the attack was motivated by Mr Mok Hin Kyong's assumed racial origin, even though we could not be sure who in the group had said the words in question?”.
The relevant facts from the case stated
It is established that this Court is bound by the facts set out in the stated case. This is relevant because it is apparent that the prosecution and defence have interpreted the case stated in different ways. I have therefore set out below the relevant parts of the case.
The relevant parts of the stated case were:
“It was not in dispute that Mr Mok Hin Kyong was walking down Oxford Street with his companion Ms Lynn when a group of white males approached from the opposite direction. One of the group bumped into him. There was an altercation. During the altercation Mr Mok Hin Kyong was assaulted by more than one male. The appellant punched him in the face and Mr Mok Hin Kyong stated that he thought he heard the appellant say “I don't want your coronavirus in my country” but he accepted when he was cross-examined that he could not be 100% sure if it was the appellant who said this as he was looking down after he was punched. The other witnesses gave similar accounts. Ms Lynsey Hamilton gave evidence that the scene was chaotic, but she heard the words “we don't want your disease in our country”. Ms Katy Hamilton gave evidence that she heard “you are diseased don't come near me”. Finally, Ms Higgs gave evidence that she heard “get your disease away from us”. Ms Lynn gave evidence but could not assist with what was said. The appellant gave evidence where he accepted, he had punched the complainant, but he did not say anything or hear anything about coronavirus or disease directed towards Mr Mok Hin Kyong.”
In the case stated the Justices recorded that the prosecution had opened their case on the basis that the appellant had demonstrated hostility towards Mr Mok Hin Kyong based on his presumed membership of a racial group. The Justices also noted that in closing the prosecution had relied on joint enterprise.
Further relevant findings are set out below.
The extension of time
It is apparent from all the information before this Court that the appellant was advised to bring an appeal against his conviction, and gave instructions for such an appeal to be brought. An application to state a case was made within time to the Youth Court on 17 February 2021. There was some delay in the drafting of the case, and the Justices served the stated case on the appellant's legal representatives on 1 June 2021. This meant that an appellant's notice had to be filed within 10 days pursuant to paragraph 2.2 of Practice Direction 52E, by 11 June 2010.
In the intervening period the solicitor handling the case lost his employment at the firm of solicitors who had been instructed, and delays occurred in the hand over of legal aid and the pursuit of the appeal. It was because the appellant had needed further legal representation in relation to an additional and separate offence of wounding with intent contrary to section 18 of the OAPA (to which he has pleaded guilty and for which he is to be sentenced in the Crown Court at Wood Green later this summer) that the appellant came across different solicitors who assisted the appellant to progress this appeal by way of case stated. The appellant's notice was filed more than 11 months out of time.
An extension of time may be granted in such a case pursuant to CPR 52.15 and 3.1. The guidance given in Denton v TH White [2014] EWCA Civ 906; [2014] 1 WLR 3926is relevant to applications for relief in respect of failures to comply with time limits set out in the rules for appeals by way of case stated, see Halcrow v Crown Prosecution Service [2021] EWHC 483 (Admin); [2021] 2 Cr App R 1. There was reference in the submissions to Greece v O'Connor [2022] UKSC 4; [2022] 1 WLR 903 in which the Supreme Court considered the circumstances in which it would be right to visit the failures of a legal representative on an appellant seeking permission to appeal against an order for extradition.
In my judgment in this case there was: (1) a serious breach of the rules to file the appellant's notice on time because there was a delay of 11 months; (2) there was no good reason for this serious breach. This is because a change of employment by the solicitor is not a good reason for delaying filing an appellant's notice. It is, however, necessary to: (3) evaluate all of the circumstances of the case. In this respect it is relevant to note that the appellant is young, the evidence shows that he was at material times a Child in Need for the purposes of social services support, and he was dependent on the solicitor to lodge the appellant's notice. The case is a criminal one so that it is appropriate to have some regard to the distinction between legal representatives and defendant so far as fault is concerned. The appellant had been attempting to appeal from the moment of his conviction, and the formal notice for stating a case had been served in time. Further it is apparent, from the matters set out below, that there is apparent merit in the appeal.
On the other hand there are the...
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