KK v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1976 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2016 |
| Docket Number | Case No: CO/2267/2016 |
[2016] EWHC 1976 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Singh
Case No: CO/2267/2016
R Hallowes for the Appellant
B Douglas-Jones for the Respondent
Hearing date: 12 July 2016
Approved Judgment
This appeal by way of case stated from the Youth Court arose out of the decision of the District Judge to hear at the same time and to give a single judgment where (a) there was a trial of one of two co-defendants who had pleaded not guilty to robbery and (b) there was a Newton hearing of the other defendant who had pleaded guilty to the robbery on a basis of plea which was not acceptable. The case stated involved two main issues:
i) Was the evidence of the co-defendant in the Newton hearing admissible in the trial of the other defendant and, if not, was the conviction safe? In the light of the correct concession by the respondent Director of Public Prosecutions that the evidence was inadmissible, we determined at the hearing that the conviction should be quashed and directed that that defendant be re-tried before a different judge as soon as possible.
ii) How the Youth Court should best proceed in such a case. As this was a question of more general interest, we stated we would give our reasons later in the light of further submissions that we directed be provided in writing.
The facts
The facts in the case in the Youth Court were relatively straightforward.
Sometime after 15:00 on the afternoon of 8 July 2015, SH, a girl of 15 years of age who was with her friend, BC, was robbed of her mobile phone by two people. During a 999 call made at 15:52, very shortly after the incident, SH described her assailants as two black males. A short while thereafter she gave a different description to the police saying one was black and the other Asian. In a witness statement later that day further descriptions were given.
At about 16:40 that same afternoon, two male youths were photographed climbing into a house nearby in Hounslow through an upstairs window.
Shortly thereafter the police arrested KK, a black youth who was about 15 years of age, and his friend, MGS, who was 14. They were charged with robbery and false imprisonment. An identification parade was held on the following day; MGS was identified by SH and BC, but KK was identified by neither. KK gave a no comment interview.
The proceedings
With appropriate and commendable speed the matter came before District Judge (Magistrates' Court) Deborah Wright at the Youth Court at Uxbridge two days later on 10 July 2015.
KK was represented by a firm of solicitors and pleaded not guilty to the charges of robbery and false imprisonment. MGS who was represented by a different firm of solicitors pleaded not guilty to the charge of false imprisonment, but guilty to the robbery on a basis of plea. Although MGS accepted in his basis of plea that a robbery had taken place and that it had been committed with KK, he denied that a knife was used. The basis of plea was not accepted.
It is clear from the case stated and from annexes to the case (the directions forms completed by the prosecutor and the advocates for the defendants and from the written directions made by the judge) that the judge determined then and there that a Newton hearing would be required in respect of MGS and a trial in respect of KK on the robbery and a trial for both on the false imprisonment charge. No representations were made by any party that separate hearings should take place. The judge determined the cases should be heard together but gave no reasons, as no objections were raised. Not only did the District Judge make it clear that the matter would proceed in that way, but paragraph 15 of her directions provided that in the event that legal aid was not available for either of the defendants, BC and SH could be cross-examined under s.38 of the Youth and Criminal Evidence Act 1999 by the respective solicitor advocates who represented them at the hearing.
However, the directions did not deal with the detail of what was to happen. No direction was made as to when MGS was to give evidence in relation to the Newton hearing. No-one at that stage seems to have considered any issue as to how his evidence would relate to the trial of KK on the robbery charge or its admissibility in that trial.
The judge set the trial date for 27 August 2015 and made clear that if any party wished to raise any legal argument the court should be notified as soon as they became aware of it.
On 3 August 2015 the CPS discontinued the charge of false imprisonment against both KK and MGS.
Apart from a hearing in relation to bail on 16 July 2015, there were case management hearings on 20, 24 and 25 August 2015. By 16 July 2015 KK was represented by new solicitors who also represent him on this appeal. It does not appear that at any of those hearings any thought was given as to how the trial of KK on the sole remaining charge was to be conducted on the same day as the Newton hearing in respect of MGS. As far as the District Judge was concerned, no-one had objected to her direction that the cases should be heard together, either at the original hearing on 10 July 2015 or at any subsequent hearing prior to the date of the trial, and therefore they would be heard together.
MGS had a learning disability and an intermediary was arranged on his behalf.
The hearing on 27 August
On the morning of the hearing, the judge was told by the legal adviser (who was, unusually, sitting with her) that there was going to be an application to sever the two cases and for there to be two separate hearings. It appears that the advocate for MGS first raised the issue as MGS did not want to give evidence against KK because KK was his friend. It is clear that the advocate for KK made the same application.
After the judge had gone into court there was some discussion of the position. Representations were made to the effect that there was a conflict between MGS's case and that of KK and that might prejudice KK's trial. The judge determined that all evidence should be heard and, if it was relevant, taken into account in respect of KK and MGS. The judge explained in the case stated submitted to this court that she had reached that conclusion as everything had been arranged for that day, an adjournment would be contrary to the interests of all concerned and significant costs would be incurred. The judge concluded that if MGS gave evidence against KK, then that was no different to the situation they would have been in had they both been facing a joint trial. No-one seems to have pointed out that they were not facing a joint trial or raised any issue as to the status of the evidence of MGS in relation to the trial of KK.
The judge then held a ground rules hearing in respect of the way in which the two witnesses should give their evidence and in relation to MGS because of his limited understanding. SH and BC then gave evidence and were cross-examined respectively by the advocates for KK and MGS. Various other aspects of the prosecution case were then adduced and the prosecution case closed. A submission of no case to answer was then made by KK's advocate. The judge found there was a case to answer. His advocate then made clear that KK would not be called to give evidence.
MGS was then called to give evidence. In the course of his evidence MGS gave an account that was different to that that had been set out in his basis of plea. On the evidence he gave there was no evidence of any robbery, merely a theft. It then appears that the judge and the advocates all appreciated that a problem had arisen; the advocate for MGS was concerned as to his professional position. It appears that it was decided that the matter should nonetheless continue. MGS was cross-examined first by the prosecution and then on behalf of KK. It is clear that during the entirety of his evidence MGS identified KK as the person who had been with him when the mobile phone was taken and he had been with KK when arrested. The advocates for KK and MGS then addressed the court.
At 17:20 the judge gave a single reasoned judgment in the trial of KK and the Newton hearing of MGS. She found that KK had been present and had robbed SH at knifepoint; and that MGS knew that KK had a knife, that his presence...
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